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COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 1, 2023
Sheila T. Reiff A party may file with the Supreme Court a
Clerk of Court of Appeals petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1812 Cir. Ct. No. 2021TP23

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN RE THE TERMINATION OF PARENTAL RIGHTS TO S.R.R. , A PERSON UNDER
THE AGE OF 18:

KENOSHA COUNTY DIVISION OF CHILD AND FAMILY SERVICES,

PETITIONER-RESPONDENT,

D.R.-R.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
JODI L. MEIER, Judge. Reversed and cause remanded for further proceedings.

¶1 GUNDRUM, P.J.1 D.R.-R. appeals from an order terminating her
parental rights to S.R.R. She asserts the circuit court erred when it granted

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1812

Kenosha County Division of Child and Family Services’ (County) motion for
default in the grounds phase of this termination of parental rights (TPR)
proceeding, thereby denying D.R.-R. her right to a jury trial in that key phase. For
the following reasons, we agree, and we reverse the order terminating D.R.-R.’s
parental rights and remand to the circuit court for further proceedings.

Background

¶2 The record indicates D.R.-R. was born in Guatemala, stopped
attending school in the first grade, and is unable to read or write. In
December 2018, she crossed into the United States with her then three-year-old
daughter, S.R.R. In March 2019, S.R.R. was found to have severe injuries
indicating physical and sexual abuse that reportedly occurred while D.R.-R. was at
work.

¶3 The County filed a petition in April 2019 alleging S.R.R. to be a
child in need of protection or services (CHIPS). By August 7, 2019, four hearings
were held on the petition, all of which D.R.-R. attended in person. At an
August 7, 2019 hearing, which D.R.-R. also attended in person, the circuit court
adjudicated S.R.R. to be CHIPS and placed her outside the home until D.R.-R.
could meet the conditions of return.

¶4 Over the course of the next two and one-half years, nine more
hearings were held on the CHIPS petition.2 D.R.-R. appeared in person for the
entirety of all but two—the first and third—of these hearings. She did not attend a

2
The Honorable Jodi L. Meier appears to have presided over a majority of the CHIPS
and TPR hearings.

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No. 2022AP1812

September 20, 2019 hearing to review the permanency plan for S.R.R.3 When she
failed to appear at that hearing, the court issued a capias4 for her apprehension but
stayed it until an October 1, 2019 status hearing, at which D.R.-R. appeared in
person and the capias was vacated. D.R.-R. was late to a hearing on March 6,
2020, held to review the permanency plan.

¶5 On March 29, 2021, the County filed a petition to terminate
D.R.-R.’s parental rights on the bases of abandonment and CHIPS. On April 27,
2021, the circuit court held the first hearing on this petition. Although not yet
appointed counsel, D.R.-R. appeared in person, and a K’iche’ interpreter—who
interpreted for D.R.-R. at all of the hearings—appeared via Skype. At the
conclusion of the hearing, the court informed D.R.-R. that she must “appear at
every single hearing that we have …. If you don’t show up the Court could
default you for not showing up and proceed then to termination of your parental
rights without a hearing. Understand?” D.R.-R. responded (through her K’iche’
interpreter),5 “Yes. I always attend and I will attend in the future. Today I was a
little late, but the police was getting me confused and sending me somewhere else
and I kept telling him it’s this direction.” The court responded, “Okay. Well,
good. We know you attend so just … make sure you do; okay? Thank you.”

3
Both D.R.-R’s counsel and the social worker appearing on behalf of the Department of
Child and Family Services believed there had been a miscommunication with D.R.-R.
4
A “capias” is “a legal writ or process commanding the officer to arrest the person
named in it.” Capias, WEBSTER’S THIRD NEW INTER’L DICTIONARY (unabr. 1993).
5
D.R.-R., whose primary language is K’iche’, was assisted by a K’iche’ interpreter.
Where we indicate that a statement was made by D.R.-R., it was made through the interpreter,
except for one instance in which D.R.-R. herself directly responded to the circuit court, “Okay.
Si.” See infra ¶12.

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No. 2022AP1812

¶6 The next hearing was held on May 26, 2021. D.R.-R. appeared in
person with counsel. The K’iche’ interpreter appeared via Skype and telephone.
When discussing the petition documents that had been served upon D.R.-R. and
her understanding or lack thereof of those, the guardian ad litem, who was familiar
with D.R.-R. from the CHIPS case, advised the court, “I’m not so sure she’s able
to read at all in any language.” The matter was adjourned again for “an adjourned
initial appearance” to be held August 5, 2021. No “must appear” or default
warning was provided by the circuit court.

¶7 D.R.-R. and her counsel again appeared in person at the August 5,
2021 hearing, with the K’iche’ interpreter appearing via Skype. The circuit court
spent some time trying to get D.R.-R. to understand that when it asked her if she
wanted to substitute the judge in the case that the court was not asking if she
wanted to change attorneys. When asked again by the court, “[D]o you
understand that you have the right to have a different Judge if you want to?”
D.R.-R. responded,

Yes. I understand. I have friends that tell me that I have
rights and that I can fight about anything…. I know we
have a lot of things that happened in our lives that we have
to fight for anything that happened. For example, my
country there is not a perfect place. There’s a lot of things
that happened and not only to me, but to people all over the
world have things happening to them and I just want to say
that I understand that and thank you.

¶8 Counsel for D.R.-R. entered a plea on D.R.-R.’s behalf denying the
allegations of the petition and requesting a jury trial. When the circuit court
subsequently asked D.R.-R. if she understood that she had “the right to have your
jury trial on the issue of whether grounds exist to terminate your parental rights
within 45 days of today? Do you understand that you have that right…?” D.R.-R.
responded, “Yes, but I’m not understanding the meaning of the word trial. What

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No. 2022AP1812

does that word mean?” When the court asked again if she agreed with going past
the “45-day mark” for a trial in order to give her counsel sufficient time to prepare,
D.R.-R. responded, “I think I’m okay with that. When I think about a trial
sometimes I think that perhaps everybody have already agreed and given my child
for adoption and taken her away from me forever.”

¶9 At the end of the August 5 hearing, the circuit court advised D.R.-R.:
“[Y]ou are ordered to appear for all of your court hearings and if you would fail to
show for your court hearings you could be found in default and you could possibly
forfeit your attorney as well. Do you understand that?” D.R.-R. responded,
“Yes.” The court then asked if she had “any questions about that,” to which she
responded, “No, I don’t have any, but I would like to tell all of you that while we
all have a right and about asking for forgiveness that perhaps I have missed my
court hearing at some time, but I’m asking for forgiveness to all, please.”

¶10 A jury status hearing was held on November 2, 2021. D.R.-R. again
appeared in person, along with her counsel, and the K’iche’ interpreter appeared
again via Skype. In responding to the court’s inquiry as to the status of the case
for a jury trial, counsel for D.R.-R. responded, “I can say to the Court that I have
had difficulty in explaining the process from start to finish to [D.R.-R.].” Counsel
for the County agreed, stating, “[I]t is my belief that it will take a significant
amount of time for mother to understand the process of potentially resolving this
case; much less the process of a jury trial,” and added, “It is very difficult to be
able to have a constructive meeting due to the significant language barrier here
and … the existence of essentially only one nationwide [K’iche’] interpreter.”

¶11 Counsel for D.R.-R. indicated to the circuit court that “in terms of
discovery, my review of the discovery clearly highlights … issues for trial.”

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No. 2022AP1812

Counsel further stated that her “continued conversations with [D.R.-R.] essentially
has led me to believe that … she was not understanding a lot in the beginning
when I thought she was understanding.” Counsel expressed that her
“communications with [D.R.-R.] have led me to believe we have … a lot more
work to do to make sure that I know that she understands what’s happening.” She
added,

[P]rior to my more lengthy conversation with her today I
felt as if this might be a case of competency because her
ability to understand the process, the words, the
terminology, the orders of the Court, what she’s required to
do.

….

Prior to the last week I thought I would have to be raising
competency because of those issues. However, over the
last week my conversations with her, my maybe adjusting
the way I ask things, adjusting the way she answers certain
questions or getting more information about that has led me
to believe we do have competency. It’s just a matter now
of us being on the same page so I do think we can get there.
It has just been a journey.

The court stated that “[i]t doesn’t sound like we[ are] looking at [a trial] any time
soon.” When the court asked counsel for D.R.-R. how long she would need in
order to ensure she was prepared for trial, counsel responded, “60 days.” The
court adjourned the trial scheduled for the following week, and instead of “just
sticking a trial date on in January and then forgetting about it until the Thursday
before,” set a status conference for November 16, 2021, “to get a better sense of
what might happen.” The court also stated that the father’s TPR case, which had
been tracking along with D.R.-R.’s, was set to be addressed at that November 16
hearing for purposes of taking testimony “on grounds to support a default request
for the father.”

6
No. 2022AP1812

¶12 Before concluding the November 2 hearing, the court advised
D.R.-R. as to the need for her to appear at future hearings. The colloquy went as
follows:

THE COURT: … [D]o you understand that if you don’t
show up for court you could be found in default which
means that you may not be able to contest whether grounds
exist to terminate your parental rights?

[D.R.-R.]: Well, yeah. Yes. If I don't appear here in court
they can send the police after me at home and bring me to
court. No?

THE COURT: Well, I’m not going to do that. I’m telling
you you have to appear or I can make orders that will not
allow you to contest certain parts of this case going
forward. Do you understand that?

[D.R.-R.]: Oh. Well, no, I would have to appear at every
court hearing … moving forward.

THE COURT: Yes because I’m trying to tell you what
would happen in the event that you didn’t show up and I
could find you in default which means that you could be
prohibited or you would not be able to contest parts or all
of this termination of parental rights proceeding. Do you
understand that so far?

[D.R.-R.]: Well, I don’t know how much longer this case
will last because I’m worried that it’s lasting a long time
and well they’re the ones that are moving the case.

THE COURT: Okay. You’re just kind of getting ahead of
it. I just need to know if you understand if you don’t
appear for court you might—I may not let you contest parts
of the case going forward. That’s all I need to know if you
understand. Do you understand that? That means I can
find you in default and then—

([D.R.-R.] speaking in K’iche’)

THE COURT: Ms. Sass [interpreter], I don’t know if you
got that, but we can’t hear you so if you are saying
something—

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No. 2022AP1812

INTERPRETER[/D.R.-R.]: Oh, I am sorry. Yes. She said
I would like to ask for forgiveness because I believe I
missed a court hearing last week[6] because they called me
informing me that I had to come to court and I was not able
to come at that time and I believe I missed a hearing.

THE COURT: Okay. Well, I’m not talking about anything
last week. I don’t know what that was. I’m talking about
this case and the next, every hearing after this one you have
to be in court. Do you understand that?

[D.R.-R.]: Okay. Si.

THE COURT: Okay. Thank you. And if … you do not
appear you could be—you could lose the right to contest
part or all of this case. Do you understand that? I’m telling
you what will happen if you don’t show.

[D.R.-R.]: Well, no. Well, it depends if they call me and
inform me because I have my phone number. If they just
inform me about the date and time I will appear as well.

THE COURT: No, you’re missing the point. I’m just
telling you you have to appear. It’s not a matter because
we give you the date here in court. Nobody’s gonna call
you. If you do not appear at every court hearing you will
not be allowed to contest part or all of this hearing and you
could lose your attorney. Just need to know that you
understand that.

MS. REINKE [Counsel for the County]: Your Honor, if I
could just interject? We’ve been using—mother uses the
word fight. Fighting this case. Fighting for her daughter. I
don’t think she understands contest, but I think she might
understand it better if you say she doesn’t have the ability
to fight this.

INTERPRETER[/D.R.-R.]: Your Honor, her response was
yes.

THE COURT: Okay. All right. So then I—she said yes to
my question so we’re good. All right. That will conclude

6
We see no indication in the record that D.R.-R. had any court hearing the prior week.
Due to the significant language challenges, it is possible she was referring to having previously
missed a court hearing in the CHIPS case, two years earlier, or to some meeting related to the
TPR case.

8
No. 2022AP1812

the hearing. Thank you. We will see everybody on
November 16th at 2:45 p.m. for status, further proceedings,
and for testimony on grounds to support a default request
for the father. All right. Thank you.

(Emphasis added.)

¶13 D.R.-R. did not appear at the November 16 status conference. When
the circuit court asked counsel for D.R.-R. at that November 16 hearing about the
status of the case, counsel responded that she

had the opportunity to have several conversations … with
[D.R.-R.] and of course with the help of [the K’iche’
interpreter] and I have had the opportunity to speak with
[counsel for the County] about the case. I believe … it was
the mother’s intention to still go forward with trial.

I did take a significant amount of time in explaining to
her what it means to have [a] trial and how she feels and
basically … what a trial would entail and I feel confident
that she does in her way understand what the process is,
and her desire was to dispute what was being said. So … I
believe that we were in trial posture.

¶14 Noting that D.R.-R. had previously been warned of consequences for
failing to appear, the County stated that it was “mov[ing] for default of the mother
and the father at this time and I would ask the Court to allow me to take testimony
at this time.” D.R.-R.’s counsel opposed the motion, stating:

I would oppose a finding of default at this time…. [A]s I
indicated I have spoken to her several times and … I know
that the Court was very simply trying to tell her that if she
missed court that she could be found in default. I think that
did create a bunch of confusion in her mind.

I believe we had talked about it, this date, the last time that
we had a conversation which was last week. I do not have
an explanation for her nonappearance. However, I have
personally been in court for the last hour so.

I have not had an opportunity myself to reach out and
try to contact her…. [S]he has always, always been
available to me or to [the interpreter] for communication so

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No. 2022AP1812

I would ask the Court at least just hold the default in
abeyance at this time.

¶15 The circuit court noted that D.R.-R. had been “given default
warnings” at three prior hearings and “she’s had legal counsel … since May and
so at this time … I will find her in default subject to the ability [of the County] to
prove on grounds.” The court added, “[I]f she comes in during the testimony on
grounds regarding the father and/or her well then I can revisit that, but we can go
forward at this point with that.” The court then proceeded to take evidence in
support of the grounds for termination of D.R.-R.’s and the father’s parental rights.
After a short while, counsel for D.R.-R. interrupted:

I just object to going into grounds at this stage quite
obviously because I was not prepared to argue grounds on
behalf of the mother who is not here unfortunately so I
would just object at this time to going forward on grounds
testimony on grounds with regard to the mother….

THE COURT: You’ve been on the case since May of 2021
and you know if a person doesn’t show up they can be
defaulted and testimony on grounds can be taken and so
I’m just I don’t quite understand … how rushed that is.

[COUNSEL]: … Typically if there is a default finding …
first, usually there is some type of warning that the default
is going to come whether that’s official or not, but then
there’s also it’s very rare that it’s immediate testimony on
grounds for the defaulted parent. So I would just … ask for
time to prepare for testimony on grounds with regard to the
mother.

THE COURT: Well, it’s a default. You don’t get to
contest it. That’s the [County] has to prove up the grounds,
so—

[COUNSEL]: Right. But I get to cross-examine.

THE COURT: You can. Right. But I’m gonna deny that
at this time and I’m thinking you would know the case
since you’ve been on it since May. So I understand that
you might not have planned for a default testimony today
and I would disagree that it rarely happens that you go right
to it. It’s just a matter of if there’s time or not and you’re a

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No. 2022AP1812

seasoned attorney so I’m going to continue to deny your
request.

Testimony on the grounds phase against the mother continued.

¶16 Testimony on the father’s and mother’s TPR petitions concluded in
less than one hour. After finding grounds had been proven against the father, the
circuit court noted that D.R.-R. still had not arrived in court, and it found that
grounds had been proven against her as well. The court then scheduled the matter
for the disposition phase of the proceedings.

¶17 On December 17, 2021, D.R.-R.’s counsel filed a motion to vacate
the default, asserting that D.R.-R. struggled to communicate effectively due to the
language barrier and her low IQ. Counsel further asserted that on the day of the
November 16 status hearing, D.R.-R. waited on the street corner for counsel to
pick her up and take her to court, and when counsel did not arrive, D.R.-R.
assumed court had been cancelled.7 The circuit court denied the motion to vacate.

¶18 D.R.-R.’s parental rights were terminated in the disposition phase.
D.R.-R. filed a postdisposition motion seeking to vacate the default in the grounds
phase and the order terminating D.R.-R.’s parental rights. After a hearing on the
motion, the circuit court denied it. D.R.-R. now challenges both the court’s

7
The record shows that D.R.-R. had received rides from other service providers to
appointments and on at least one prior occasion, her previous attorney had given her a ride to
court. Indeed, at a hearing on the motion to vacate the default, counsel for D.R.-R. indicated that
she had driven D.R.-R. to the November 2 hearing (which immediately preceded the
November 16 status conference that D.R.-R. missed) and had driven her home after a
November 1 meeting.

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No. 2022AP1812

default determination denying her a jury trial in the grounds phase and its decision
denying her motion to vacate.8

Discussion

¶19 A termination of parental rights affects some of a parent’s “most
fundamental human rights.” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246
Wis. 2d 1, 629 N.W.2d 768. “At stake for a parent is his or her ‘interest in the
companionship, care, custody, and management of his or her child.’” Id. (quoting
T.M.F. v. Children’s Serv. Soc’y, 112 Wis. 2d 180, 184, 332 N.W.2d 293 (1983)).
Moreover, a termination order is permanent and thereby “work[s] a unique kind of
deprivation. In contrast to matters modifiable at the parties’ will or based on
changed circumstances, termination adjudications involve the awesome authority
of the State to destroy permanently all legal recognition of the parental
relationship.” Evelyn C.R., 246 Wis. 2d 1, ¶20 (quoting M.L.B. v. S.L.J., 519
U.S. 102, 127-28 (1996) (citations omitted; alteration in original)). Thus,
“termination proceedings require heightened legal safeguards against erroneous
decisions.” Evelyn C.R., 246 Wis. 2d 1, ¶21.

¶20 Here, the circuit court terminated D.R.-R.’s parental rights after
sanctioning her by defaulting her in the grounds phase for her failure to appear at
the November 16, 2021 hearing. The County asserts the court’s default sanction is
supported by both WIS. STAT. §§ 806.02(5) and 805.03. WISCONSIN STAT.
§ 806.02(5) provides: “A default judgment may be rendered against any party
who has appeared in the action but who fails to appear at trial.” As relevant, WIS.

8
Because we conclude the circuit court erred in determining D.R.-R. defaulted in the
first instance, we need not address whether it also erred in denying her motion to vacate.

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No. 2022AP1812

STAT. § 805.03 states: “[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 ….” The court’s determination that D.R.-R. defaulted is not
supported by either of these statutory provisions.

¶21 We review for an erroneous exercise of discretion a circuit court’s
sanction of default based on a litigant’s conduct. Industrial Roofing Servs., Inc.
v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898; Evelyn C.R.,
246 Wis. 2d 1, ¶18. We will sustain “[a] discretionary decision … if the circuit
court has examined the relevant facts, applied a proper standard of law, and, using
a demonstrated rational process, reached a conclusion that a reasonable judge
could reach.” Industrial Roofing Servs., ¶41 (citing Johnson v. Allis Chalmers
Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991)). Any “[f]actual findings
made by the circuit court will not be disturbed unless they are clearly erroneous.
A finding of fact is clearly erroneous if it is against the great weight and clear
preponderance of the evidence.” Lowe’s Home Ctrs., LLC v. City of Delavan,
2023 WI 8, ¶25, 405 Wis. 2d 616, 985 N.W.2d 69 (citation omitted).

WISCONSIN STAT. § 806.02(5)

¶22 The plain language of WIS. STAT. § 806.02(5) shows that it does not
provide legal authority for the default in this case. That provision authorizes entry
of a default judgment if the party “fails to appear at trial.” Sec. 806.02(5)
(emphasis added). In this case, the circuit court scheduled the November 16
hearing as merely a “status, further proceedings” hearing; it would be neither a

13
No. 2022AP1812

trial nor even another jury status conference.9 The County has not provided us
with any case law suggesting § 806.02(5) has been interpreted by controlling
authority in a manner other than what the plain language states—that this statute
simply does not apply unless a party fails to appear “at trial.” Moreover, because
D.R.-R. appeared at the November 16 hearing through counsel, “[t]his case does
not fall within the scope of WIS. STAT. § 806.02(5).” See Evelyn C.R., 246
Wis. 2d 1, ¶17 (“Although [the mother] was not physically present at the fact-
finding hearing, she nevertheless ‘appeared’ at the hearing via her counsel. Thus,
§ 806.02(5) does not govern the outcome of this case.”).

WISCONSIN STAT. § 805.03

¶23 The County’s second stated source of authority for the default—
WIS. STAT. § 805.03—fares no better because the circuit court’s determination of
default due to D.R.-R.’s failure to appear on November 16, 2021, was not “just”
under the circumstances.

¶24 WISCONSIN STAT. § 805.03 “limit[s] the sanctions that circuit courts
may impose … for failure to comply with court orders to those that are ‘just.’”
Industrial Roofing Servs., 299 Wis. 2d 81, ¶43. A sanction of default in a civil
case—a “particularly harsh sanction”—is “just” if the non-complying party’s
conduct has been “egregious[]” or “in bad faith.” Dane Cnty. Dep’t of Human

9
We appreciate likely reasons why this default authority is limited to circumstances in
which a party fails to appear “at trial.” With a trial, subpoenas have been issued, witnesses are set
to testify, a jury has been assembled, attorneys have expended time preparing, and significant
court time has been set aside to hear the trial. With something like a simple “status, further
proceedings” hearing, none of those things have occurred. Furthermore, a “trial” is to resolve the
matter on the merits, with the finality of bringing the matter to a head/conclusion—“put up or
shut up” time; not so with a simple status conference or “further proceeding[].”

14
No. 2022AP1812

Servs. v. Mable K., 2013 WI 28, ¶69, 346 Wis. 2d 396, 828 N.W.2d 198 (quoting
Industrial Roofing Servs., 299 Wis. 2d 81, ¶43); Waukesha Cnty. Health &
Human Servs. v. S.S., No. 2020AP592, unpublished slip op. ¶13 (WI App
June 10, 2020) (expressing that entry of a default judgment is “a particularly harsh
sanction”). Our supreme court has stated plainly that “[b]efore a circuit court may
enter a default on the ground that a party failed to comply with a court order, the
party’s conduct must be egregious or in bad faith.” State v. Shirley E., 2006 WI
129, ¶13 n.3, 298 Wis. 2d 1, 724 N.W.2d 623 (emphasis added). Bad faith is not
an issue in the case now before us, so for the circuit court to have properly
determined D.R.-R. defaulted at the grounds phase of this TPR proceeding,
thereby denying her her right to a jury trial, her conduct leading to the default had
to have been egregious.

¶25 An act is egregious if it is “extraordinary in some bad way; glaring,
flagrant.” Sentry Ins. v. Davis, 2001 WI App 203, ¶21 n.8, 247 Wis. 2d 501, 634
N.W.2d 553. “Egregious conduct means a conscious attempt to affect the
outcome of litigation or a flagrant, knowing disregard of the judicial process.”
Morrison v. Rankin, 2007 WI App 186, ¶20, 305 Wis. 2d 240, 738 N.W.2d 588.
“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.” Mable K., 346 Wis. 2d 396, ¶70 (emphasis added) (quoting
Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 543, 535 N.W.2d 65 (Ct. App.
1995)).

¶26 Because D.R.-R.’s conduct leading to the circuit court’s
November 16 default determination, including her absence at the November 16
hearing, was not egregious, the court’s decision to default her in the grounds phase

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No. 2022AP1812

constituted an erroneous exercise of its discretion. As a result, we reverse the
order terminating D.R.-R.’s parental rights and remand to the circuit court for
further proceedings.

¶27 In the case now before us, D.R.-R. had appeared at all four of the
court hearings on this case prior to the November 16 hearing, including the first
hearing before she even had an attorney. She was present in the courtroom at the
November 2, 2021 hearing, which was intended to be a jury status hearing for a
trial expected to be held the following week. Due to conflicts with the
interpreter’s schedule and to allow counsel for D.R.-R. time to adequately prepare
for trial, at that November 2 hearing, the circuit court adjourned the scheduled jury
trial. Counsel for D.R.-R. indicated she had been having “difficulty in explaining
the process from start to finish to [D.R.-R.]” and asked for sixty days to allow her
to properly prepare for trial. The County’s counsel added, “[I]t is my belief that it
will take a significant amount of time for mother to understand the process of
potentially resolving this case; much less the process of a jury trial.” The court
stated that “instead of just sticking a trial date on in January and then forgetting
about it until the Thursday before,” it would schedule a status conference for two
weeks “to get a better sense of what might happen.”

¶28 As with the conclusion of some, but not all, of the prior hearings on
the case, the circuit court ordered D.R.-R. to appear at future hearings. Regarding
the default warning given at the November 2 hearing, the County writes in its
appellate brief, “The court ordered D.R.-R. to appear, stating ‘do you understand
that if you don’t show up for court you could be found in default which means that
you may not be able to contest whether grounds exist to terminate your parental
rights?’ D.R.-R. answered, ‘Well, yeah. Yes.’” The County significantly
mischaracterizes the record; D.R.-R.’s full response was, “Well, yeah. Yes. If I

16
No. 2022AP1812

don’t appear here in court they can send the police after me at home and bring me
to court. No?” So, while the County tries to represent to us that
D.R.-R. clearly understood at this point in the hearing what would happen if she
did not appear in court on November 16, the transcript actually shows she had a
significant misunderstanding of how things would play out. The court recognized
that the situation was not clear to D.R.-R., as it then spent another three pages of
transcript trying to get D.R.-R. to the point of understanding that it could
determine she defaulted, and the consequences of such a determination, if she
failed to appear at a future hearing. Indeed, at the end of this substantial effort, it
should have been apparent to everyone at the hearing that D.R.-R. did not have a
clear understanding as to what would happen if she failed to appear at the
November 16—or any other—hearing.

¶29 After D.R.-R. indicated her belief that police would be sent to her
home to bring her to court if she did not appear at a future hearing, the
November 2 hearing continued and concluded as follows:

[D.R.-R.]: Oh. Well, no, I would have to appear at every
court hearing … moving forward.

[D.R.-R.]: Well, I don’t know how much longer this case
will last because I’m worried that it’s lasting a long time
and well they’re the ones that are moving the case.

17
No. 2022AP1812

THE COURT: Okay. You’re just kind of getting ahead of
it. I just need to know if you understand if you don’t appear
for court you might—I may not let you contest parts of the
case going forward. That’s all I need to know if you
understand. Do you understand that? That means I can
find you in default and then—

([D.R.-R.] speaking in K’iche’)

THE COURT: Ms. Sass [interpreter], I don’t know if you
got that, but we can’t hear you so if you are saying
something—

INTERPRETER/[D.R.-R.]: Oh, I am sorry. Yes. She said
I would like to ask for forgiveness because I believe I
missed a court hearing last week because they called me
informing me that I had to come to court and I was not able
to come at that time and I believe I missed a hearing.

[D.R.-R.]: Okay. Si.

[D.R.-R.]: Well, no. Well, it depends if they call me and
inform me because I have my phone number. If they just
inform me about the date and time I will appear as well.

MS. REINKE [counsel for the County]: Your Honor, if I
could just interject? We’ve been using—mother uses the

10
So, at this point, the circuit court did not believe D.R.-R. had a clear understanding.

18
No. 2022AP1812

word fight. Fighting this case. Fighting for her daughter. I
don’t think she understands contest, but I think she might
understand it better if you say she doesn’t have the ability
to fight this.

INTERPRETER[/D.R.-R.]: Your Honor, her response was
yes.

THE COURT: Okay. All right. So then I—she said yes to
my question so we’re good. All right. That will conclude
the hearing. Thank you. We will see everybody on
November 16th at 2:45 p.m. for status, further proceedings,
and for testimony on grounds to support a default request
for the father. All right. Thank you.

(Emphasis added.)

¶30 The “contest”/“fight” potential clarification the County thought
important for the circuit court to address with D.R.-R. never occurred. The court’s
diligent and patient efforts to communicate with D.R.-R. to that point had not
proven very fruitful. Understandably, the court appeared to have been frustrated
with D.R.-R.’s difficulty in understanding the proceedings and what was at stake,
and it seems the court did not want to reopen a can of worms by seeking to clarify
“fight” versus “contest.”

¶31 It is undisputed and clear from the record that D.R.-R. is a person of
low intelligence and education. Due to this and the significant language barrier,
the record is replete with examples of her challenges in understanding the court
process. Indeed, based upon the record, including discussion by the parties and
the court at the November 2 hearing, significant question exists as to whether
D.R.-R. understood the meaning of legal terms such as “default,” “grounds,”
“terminate,” and “contest.” Although the circuit court later made a finding at a
postdisposition hearing that there was “[n]othing to indicate that [D.R.-R.] didn’t
understand the consequences of what flowed from a nonappearance,” this finding
is “against the great weight and clear preponderance of the evidence.” See Lowe’s

19
No. 2022AP1812

Home Ctrs., 405 Wis. 2d 616, ¶25. But even if the court was correct with this
finding, one missed appearance in this case at a status conference, especially in
light of D.R.-R.’s clear intellectual and language challenges, did not rise to the
level of egregious conduct.

¶32 As we know, D.R.-R. did not appear at the November 16 status
conference. When the circuit court asked counsel for D.R.-R. at that hearing about
the status of the case, counsel responded that she

I did take a significant amount of time in explaining to
her what it means to have trial and how she feels and
basically … what a trial would entail and I feel confident
that she does in her way understand what the process is,
and her desire was to dispute what was being said. So … I
believe that we were in trial posture.

¶33 D.R.-R. had a strong record of appearing personally at hearings in
the case—even before she had counsel—and there was no indication she was
abandoning, or even taking lightly, her effort to “fight” to protect her parental
rights to S.R.R. Nonetheless, the County moved for default. D.R.-R.’s counsel
opposed the motion, stating:

[A]s I indicated I have spoken to her several times and … I
know that the Court was very simply trying to tell her that
if she missed court that she could be found in default. I
think that did create a bunch of confusion in her mind.

20
No. 2022AP1812

I have not had an opportunity myself to reach out and
try to contact her…. [S]he has always, always been
available to me or to [the interpreter] for communication so
I would ask the Court at least just hold the default in
abeyance at this time.

¶34 Noting that D.R.-R. had been “given default warnings” at three prior
hearings and “had legal counsel … since May,” the circuit court granted the
County’s motion “subject to the [County’s] ability to prove on grounds,” adding,
“[I]f she comes in during the testimony on grounds regarding the father and/or her
well then I can revisit that, but we can go forward at this point with that.” The
court took evidence in support of the grounds for termination of the father’s and
D.R.-R.’s parental rights. After a short while, counsel for D.R.-R. interrupted:

THE COURT: Well, it’s a default. You don’t get to
contest it. That’s the [County] has to prove up the grounds,
so—

[COUNSEL]: Right. But I get to cross-examine.

21
No. 2022AP1812

to it. It’s just a matter of if there’s time or not and you’re a
seasoned attorney so I’m going to continue to deny your
request.

Testimony on the grounds phase against the mother continued.

¶35 Testimony as to the grounds on the father’s and mother’s TPR
petitions concluded in less than an hour. After finding grounds had been proven
against the father, the circuit court noted that D.R.-R. still had not arrived, and it
then determined that D.R.-R. defaulted in the grounds phase and found that
grounds had been proven against her as well. The court then scheduled the matter
for the disposition phase of the proceedings.

¶36 Where it was abundantly clear that D.R.-R. was of low intelligence,
had significant language problems, and was simply not sophisticated or
knowledgeable as to how the court system works, no reasonable judge, based upon
this record, could have concluded that her failure to appear on November 16 was
egregious and justified a default in the grounds phase, taking away her right to a
jury determination on grounds.

¶37 At that November 16 hearing, the circuit court made no mention of
any prior missed appearances by D.R.-R. in the CHIPS case. Even if the court’s
reference at the postdisposition hearing to a hearing D.R.-R. missed in the CHIPS
case had been and could properly be considered in the court’s default decision in
this separate case, one prior missed appearance11 two years earlier—out of nearly
twenty hearings—hardly constitutes “extreme, substantial, and persistent” conduct

11
There was another hearing in the CHIPS case, on March 6, 2020, at which D.R.-R.
appeared as the hearing concluded. At the postdisposition hearing in this case, the court referred
to this as an additional “miss in my book.”

22
No. 2022AP1812

of concern. See Industrial Roofing Servs., 299 Wis. 2d 81, ¶43 (quoting Hudson
Diesel, 194 Wis. 2d at 543). Her failure to appear on November 16, 2021, was not
“extraordinary in some bad way; glaring, flagrant.” See Sentry Ins., 247 Wis. 2d
501, ¶21 n.8. There is no indication it was a “conscious attempt to affect the
outcome of litigation or a flagrant, knowing disregard of the judicial process.” See
Morrison, 305 Wis. 2d 240, ¶20.

¶38 No jury trial was set for November 16—another jury status
conference was not even scheduled for that date (and D.R.-R. was present at the
prior jury status conference on November 2). D.R.-R.’s counsel was in court and
available to set future trial and pre-trial conference dates if that is what the court
intended to do. While it was important for D.R.-R. to appear on November 16,
nothing in the record indicates her absence significantly obstructed advancement
of the proceedings. More importantly, however, nothing indicates she was trying
to thwart the process or thumb her nose at the court by failing to appear or that she
simply did not care.

¶39 The County has not identified any case in which the circuit court
determined a parent’s conduct was egregious and granted default on such a meager
record. This is a far cry from cases such as S.S., No. 2020AP592, State v. K.C.,
No. 2017AP32, unpublished slip op. (WI App April 25, 2017), and State v.
Marquita R., Nos. 2010AP1979, 2010AP1980 and 2010AP1981, unpublished slip
op. (WI App Dec. 14, 2010), in which the circuit courts determined a parent was
in default in the grounds phase based on the parent’s egregious conduct. In S.S.,
the mother “falsified her medical records and lied to the court” in an effort to get
the fast approaching trial adjourned. S.S., No. 2020AP592, ¶9. In K.C., the
mother “lied to her lawyer, knowing that that false information [that she had
checked herself into the hospital] would be repeated” to the court, and she did so

23
No. 2022AP1812

“intend[ing] to manipulate [the circuit c]ourt’s calendar” and prevent the court
from conducting the grounds-phase jury trial. K.C., No. 2017AP32, ¶15. In
Marquita R., the mother “intentionally delayed the proceedings by appearing at

various emergency rooms and hospitals on court dates with bogus or suspect
claims of illness” on multiple occasions. Marquita R., Nos. 2010AP1979,
2010AP1980 and 2010AP1981, ¶1. Here, there is no indication that D.R.-R. lied
to anyone, much less the court, and there was no jury trial set. There was no
indication of any kind that D.R.-R. was deliberately attempting to thwart the TPR
process.

¶40 In conclusion, D.R.-R. did not engage in egregious conduct as was
necessary for the court to default her. As a result, the circuit court erroneously
exercised its discretion in granting the County’s default motion at the grounds
phase of this TPR proceeding. We reverse the order terminating D.R.-R.’s
parental rights, and we remand to the circuit court for further proceedings.

By the Court.—Order reversed and cause remanded for further
proceedings.

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

Kenosha County DCFS v. D.R.-R.

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