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. July 28, 2020 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. 2020AP796 Cir. Ct. No. 2018TP213
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I
IN RE THE TERMINATION OF PARENTAL RIGHTS TO M.S. JR., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
L.C.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County: MARK A. SANDERS, Judge. Affirmed. No. 2020AP796
¶1 WHITE, J.1 L.C. appeals the circuit court’s order terminating her
parental rights to her child, M.S. Jr., on the petition of the Milwaukee County
Department of Human Services. She asks this court to vacate the order and
remand for a new trial. She argues that the trial court erroneously exercised its
discretion when it struck her contest posture as a sanction and entered an order of
default judgment on the grounds of termination of L.C.’s parental rights. We
conclude that the default sanction was not an erroneous exercise of discretion
because a trial court may default a party as a sanction for egregious conduct and
the record supports the trial court’s findings. Accordingly, we affirm.
BACKGROUND
¶2 On September 10, 2018, the State filed a petition to terminate L.C.’s
parental rights to her son, M.S. Jr. The petition alleged that M.S. Jr. remained in
continuing need for protection or services (continuing CHIPS) and that L.C. had
failed to assume parental responsibility.
¶3 M.S. Jr. was born March 31, 2016, and he lived in the care of his
mother, L.C. (and some of the time in care of his father) until the Division of
Milwaukee Child Protective Services (DMCPS) removed him in April 2017. He
was removed from L.C.’s home because he was diagnosed with failure to thrive at
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.
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approximately one year of age, when he weighed less at his one-year medical
examination than at his six-month medical examination. He was placed with a
foster care family in April 2017, where he remained through the pendency of these
proceedings. On October 8, 2018, the Honorable Christopher Foley2 heard the
State’s initial petition seeking involuntary termination of L.C.’s parental rights to
M.S. Jr. The circuit court referenced that L.C. had been hospitalized for mental
health issues, but deferred appointing a guardian ad litem (GAL). The circuit
court told L.C. “you need to appear for all the hearings. You need to be on time
for the hearings. You need to stay in touch with whoever your lawyer turns out to
be.”
¶4 L.C. appeared without counsel at the return hearing date on
November 6, 2018; however, the circuit court sent her to the State Public
Defender’s Office for appointment of counsel. She appeared with counsel at the
third hearing date, December 14, 2018, at which she contested the petition and
reserved her right to a jury trial. The circuit court reminded L.C. that “You need
to appear for all the hearings, be on time, stay in touch with your lawyers.” L.C.
appeared in person at a permanency plan review hearing on February 12, 2019.
2 During the rotation of judicial calendars, this case moved from the Honorable Christopher Foley to the Honorable Mark A. Sanders. For ease of reading, Judge Foley will be referred to as the circuit court and Judge Sanders as the trial court.
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¶5 After L.C. failed to appear at depositions on February 21, 2019, and
March 7, 2019, the State moved for sanctions under WIS. STAT. § 804.12
requesting that the trial court refuse to allow L.C. to contest claims in the grounds
phase of the TPR proceedings. On March 19, 2019, instead of having the final
pretrial for the scheduled March 25, 2019 jury trial, the circuit court addressed the
State’s motion for sanctions. L.C. appeared with counsel, who explained to the
circuit court that she had been unable to contact L.C. since December 14, 2018,
and she wondered if L.C was homeless. Counsel stated that her letters to L.C.
have been returned and her phone calls went to a non-working number. Further,
L.C.’s counsel stated that she thought a competency examination was needed
based on her concerns about L.C.’s understanding of this process. L.C. informed
the circuit court she would not attend a competency examination. The circuit
court appointed a GAL pursuant to WIS. STAT. § 48.235(1) to short-cut
competency concerns. The circuit court informed L.C. that she must appear for
the deposition because if she did not, there was a strong likelihood she would be
sanctioned by taking away her right to trial on the grounds phase of this case.
¶6 On July 8, 2019, L.C. appeared in person and with counsel at the
final pretrial hearing for the rescheduled jury trial. However, the circuit court was
waylaid to address the State’s renewed motion for sanctions for L.C.’s failure to
appear for scheduled depositions on May 3, 2019, and May 20, 2019. L.C.’s
counsel argued against sanctions because L.C. consistently attended court and
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made an effort to stay on top of this case and the CHIPS case. The circuit court
described L.C.’s failure to attend depositions as egregious because it was
persistent and impaired the opposing parties’ efforts to prepare for trial. However,
the circuit court also weighed that L.C. has emotional, psychological and
competency issues that were unquestionably impacting her ability to do what she
was required to do. The circuit court considered but did not decide whether L.C.
was attempting to subvert and delay the TPR process. It also pondered if the
opposing parties needed to depose L.C. to proceed on the grounds phase of the
TPR. It considered taking the motion under advisement with the thought that if
the lack of deposition interfered with the State’s ability to make its case, then the
circuit court could default L.C. Nevertheless, the circuit court was troubled that
L.C. had blown up two trial dates, which pointed toward egregious conduct.
¶7 At the next hearing on July 15, 2019, L.C.’s counsel appeared but
informed the circuit court that L.C. was outside the courtroom but was refusing to
enter and stated that she would fire counsel if she was forced to enter. The circuit
court set a fifth deposition date with the stated expectation that if L.C. did not
show up and fully cooperate, then she would not be a trial participant.
¶8 L.C. missed the scheduled deposition on August 1, 2019. The State
filed its third motion for sanctions to strike L.C.’s trial posture for missing five
deposition dates, and a hearing was scheduled for September 20, 2019. However,
on that date, L.C. did not appear and the trial court questioned whether she was
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sent notice at the proper address. L.C.’s counsel was at a trial in another county
and did not appear. The trial court adjourned the hearing over the objection of
M.S. Jr.’s GAL.
¶9 The rescheduled hearing on the State’s third motion for default was
held on October 7, 2019. L.C.’s counsel and GAL appeared; however, L.C. did
not appear and had no contact with her counsel, her GAL, M.S. Jr.’s case manager,
or the court. L.C.’s counsel reiterated that she had not had contact with L.C.; the
phone numbers were not working, although the mail to her most recent address
was not returned. M.S. Jr.’s GAL joined the State’s motion for sanctions; both
parties argued it was egregious that that L.C. missed five scheduled depositions,
two court appearances including that day, and she refused to enter the courtroom
on July 15, 2019. M.S. Jr.’s GAL pointed out that L.C. was in contact with the
court system to obtain a restraining order against M.S. Jr.’s father, but she had not
stayed in touch with her attorney, her GAL, or the court on this case.
¶10 The trial court reviewed the situation on the record:
Here though, there have been at least five deposition dates that have been missed by [L.C.]. While certainly one oversleeping on one date would not be egregious, or not being able to afford bus fare for another date would not be egregious, those negligent excuses begin to lose their persuasiveness when it gets to three or four or certainly five times. We don't even have an explanation. That’s because [L.C.] has not been staying in contact with [her counsel], or [her GAL].
Now it’s true that [L.C.] does have some mental health issues that may affect her competence. To address
6 No. 2020AP796
that situation, Judge Foley took the very prudent step of appointing [a GAL].…
…I accept that she has challenges. I don’t accept that those challenges have resulted in her inability to attend five different deposition dates and her decision not to inform parties of her current address and her decision not to stay in contact with [her counsel]. I think it’s absolutely is egregious conduct.
…On many occasions she’s been told that [if] she doesn’t cooperate with specific deposition dates, that there would be consequence that could involve her being found in default. She still hasn’t cooperated. There is no other conclusion that can be reached from these facts that her failure to cooperate is designed only to delay these proceedings.
¶11 The trial court also inferred bad faith from L.C.’s refusal to enter the
courtroom on July 15, 2019, with a threat that she would fire her counsel if she
was forced to go inside. It found by the cumulative nature of her conduct that
missing the most recent deposition was both egregious and in bad faith.
¶12 The trial court then considered its options to sanction L.C. for her
conduct. It dismissed monetary fines as inappropriate. It determined that limiting
the evidence L.C. could provide at trial would not allow the case to proceed. It
found that the only sanction that would “address her conduct and relieve the case
of the burdens created by her conduct is to find her in default and strike her jury
trial position.” Otherwise, the trial court stated L.C. could keep skipping
depositions, not come to court or communicate with her lawyer, and cause
indefinite delay. The trial court then scheduled hearings for the State to prove the
grounds of the allegations against L.C. as well as the dispositional phase of the
TPR trial.
7 No. 2020AP796
¶13 At the November 18, 2019 hearing, L.C. was present with counsel.
Although L.C.’s counsel explained to L.C. that she could move the court to reopen
the default judgment on grounds, L.C. chose to move forward without a motion to
reopen. The trial court encouraged L.C. to attend and participate in the
dispositional phase of the trial.
¶14 On December 13, 2019, L.C. with counsel attended the State’s prove
up of the grounds for TPR and the first part of the dispositional hearing. The State
called the family case manager from Children’s Wisconsin Community Services
who supervised M.S. Jr’s care for DMCPS. As proof of the grounds, the State
argued that L.C. did not comply with condition two, control of her mental health;
condition three, always supervise your child and place your child’s need before
your own; and condition four, have age appropriate expectations of child.
Additionally, the case manager testified that as far as she knew, L.C. was transient
and did not have a safe, suitable and stable home. The case manager testified she
was unaware of any good reason why L.C. had not complied with the reunification
plan.
¶15 The dispositional phase of TPR proceedings began on December 13,
2019; the State called M.S. Jr.’s foster mother, who testified to his placement and
her willingness and desire to adopt M.S. Jr., and the case manager who earlier
testified to the grounds for TPR. The trial continued on December 23, 2019; L.C.
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did not call any witnesses and she chose not to testify after a colloquy with the
trial court.
¶16 The State and M.S. Jr.’s GAL each reviewed their cases for
termination under the six factors in WIS. STAT. § 48.426(3). L.C. argued against
TPR and asked the trial court to take judicial notice of the restraining order against
M.S. Jr.’s father barring contact with L.C. Her counsel reminded the trial court
that L.C. had valiantly tried to attend the hearings even though she lacked an
address, she travelled by bus, and she carried her belongings with her.
¶17 Finally, the trial court reviewed the factors under WIS. STAT.
§ 48.426(3) and found it in the best interest of M.S. Jr. to terminate the parental
rights of L.C. and M.S. Jr.’s father. For the first factor, the trial court found that
M.S. Jr. was a generally adoptable child. For the second factor, the trial court
found that M.S. Jr. was diagnosed with failure to thrive when he was removed in
April 2017, but he was a healthy three year old boy at the time of trial. For the
third factor, the trial court found that it would not harm M.S. Jr. to sever the
relationship with L.C. because it was not substantial because M.S. Jr. was out of
L.C.’s care longer than in her care. For the fourth factor, the trial court
acknowledged that M.S. Jr. was too young to understand the concept of adoption,
but it inferred he would wish to continue living with his foster parents because in
the context of his life, they were his parents. For the fifth factor, the trial court
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found that seventy-one percent of M.S. Jr.’s life was spent in out-of-home care,
and that time was the most recent part of his life.
¶18 The final factor was whether the child would be able to enter a more
stable and permanent family relationship through termination. The trial court
considered that his current foster placement was fairly stable with some concerns,
but, in contrast, the likelihood of placement with L.C. was low, due to her impulse
control and unaddressed mental health issues. The trial court considered the
results of M.S. Jr.’s prior placement with L.C., which was not good because M.S.
Jr. was diagnosed with failure to thrive. After reviewing all of the factors, the trial
court determined it was in M.S. Jr.’s best interests to terminate the parental rights
of L.C. and his father.
¶19 L.C. filed notice of her intent to pursue appellate relief on January
14, 2020. On January 27, 2020, the trial court signed the order appointing
appellate counsel. This appeal follows.
DISCUSSION
¶20 The issue before this court is narrow. L.C. moves the court to vacate
the judgment terminating her parental rights to her son, M.S. Jr., because the trial
court issued an order of default judgment on the grounds for the TPR as a sanction
for L.C.’s conduct in discovery. L.C. argues that the trial court erroneously
exercised its discretion to issue this sanction because although a trial court may
10 No. 2020AP796
issue default as a sanction for conduct that was egregious and without clear and
justifiable excuse, here, the trial court failed to analyze whether L.C. had a clear
and justifiable excuse for her conduct. We interpret L.C.’s second argument that
the trial court did not analyze relevant facts to assert that the circuit court
disregarded a clear and justifiable excuse for her conduct.
¶21 We affirm the court because the record supports that L.C.’s conduct
was egregious, in bad faith, and no clear and justifiable excuse for her conduct
appears in our review of the record.
¶22 It is within the circuit court’s discretion to impose sanctions and to
decide which sanctions to impose, including striking contest posture and entering
default judgment in TPR proceedings. See Industrial Roofing Servs., Inc. v.
Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898. We review the
circuit court’s decision to impose a sanction of default judgment under the
erroneous exercise of discretion standard. Brandon Apparel Grp., Inc. v. Pearson
Props., Ltd., 2001 WI App 205, ¶10, 247 Wis. 2d 521, 634 N.W.2d 544. “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.” Dane Cty. DHS v.
Mabel K., 2013 WI 28, ¶39, 346 Wis. 2d 396, 828 N.W.2d 198.
11 No. 2020AP796
¶23 The circuit court has inherent and statutory authority to sanction a
party for failing to obey a court order. See WIS. STAT. §§ 804.12(2)(a) and
805.03. Statutory sanctions for failing to obey a court order are limited to those
that are “just.” Industrial Roofing, 299 Wis. 2d 81, ¶43. A party may be
sanctioned with dismissal, striking contest posture, or default judgment when the
party’s conduct is egregious or in bad faith without clear and justifiable excuse.
See id. For a circuit court to enter default judgment, it is not required to analyze a
“specific set of factors” but instead it focuses on the degree to which the party’s
conduct impairs justice in this action and justice in the operation of our judicial
system. Brandon Apparel, 247 Wis. 2d 521, ¶11 (internal citations omitted).
¶24 L.C. argues that the trial court’s failure to use the terms “clear and
justifiable excuse” shows that the trial court did not analyze the second step of the
sanction analysis. We do not require the circuit court to use magic words. See
Marathon County v. D.K., 2020 WI 8, ¶54, 390 Wis. 2d 50, 937 N.W.2d 901. We
will not “reverse simply because the court did not use these words if there is an
implicit finding under the correct standard and if the facts provide a reasonable
basis for the court's implicit determination.” Teff v. Unity Health Plans Ins.
Corp., 2003 WI App 115, ¶14, 265 Wis. 2d 703, 666 N.W.2d 38. Therefore, we
must examine whether the trial court imposed the default sanction in accordance
with the law and upon a reasonable determination of the facts in the record.
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¶25 When we review a claim that the court did not consider a clear and
justifiable excuse for sanctioned conduct, we search the record for a basis for this
allegation. See Sentry Ins. v. Davis, 2001 WI App 203, ¶20, 247 Wis. 2d 501, 634
N.W.2d 553. Although L.C.’s mental health condition was referenced throughout
the proceedings, the record does not support that L.C. made her mental health an
excuse for her conduct that delayed the TPR proceedings. The record supports
that the court recognized and responded to L.C.’s mental health challenges; the
circuit court appointed a GAL without ordering a competency examination in
order to safeguard L.C.’s rights and participation.
¶26 The court was not hasty to sanction L.C. A court may not impose
default judgment as a sanction unless the non-compliant party was on notice of
that possibility. See WIS. STAT. § 805.03; East Winds Props., LLC v. Jahnke,
2009 WI App 125, ¶14, 320 Wis. 2d 797, 772 N.W.2d 738. The State moved the
court three times to sanction L.C. for failing to attend depositions because without
having L.C.’s responses, the State’s ability to prepare for trial was impaired. The
March and July hearings on sanctions resulted in the TPR trial dates being pushed
back. The circuit court put L.C. on notice that failing to cooperate with court
orders to attend depositions and stay in touch with her counsel would result in
striking her contest posture and entering default judgment. When the trial court
addressed the State’s third motion after L.C. missed the fifth deposition date, it
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reviewed L.C.’s total conduct in the case and concluded that the cumulative effect
was both egregious and in bad faith.
¶27 We examined the record but are unpersuaded that the trial court
failed to consider a clear and justifiable excuse for L.C.’s conduct. Wisconsin
courts have not interpreted the meaning of “a clear and justifiable excuse” as a
legal term, but instead at its plain and ordinary meaning. We have rejected claims
of a clear and justifiable excuse when an examination of the record fails to support
the claim. See, e.g. Trispel v. Haefer, 89 Wis. 2d 725, 734, 279 N.W.2d 242, 246
(1979) (no clear and justifiable excuse for failure to comply with a court order for
discovery when there is no information in the record or by affidavit to support the
claim); Brandon Apparel, 247 Wis. 2d 521, ¶16, (no clear and justifiable excuse
when a party’s claims it need not attend a deposition were made without a basis in
law or fact); Sentry Ins., 247 Wis. 2d 501, ¶ 20 (no clear and justifiable excuse
when there was no substantiation in the record to support arguments made before
the trial court for a discovery production error.)
¶28 Here, our examination of the record does not show that the trial court
failed to consider a clear and justifiable excuse or even failed to look for one.
When the trial court reviewed L.C.’s failures to follow court orders to attend
depositions and stay in contact with her attorney at the October hearing, it stated,
“We don’t even have an explanation.” At the November 2019 hearing for the
State to prove the grounds for TPR, L.C. through counsel decided not to move to
14 No. 2020AP796
reopen the default judgment. That would have been an opportune moment to
make the court aware of a justifiable excuse for L.C.’s conduct and allow it to
reconsider its decision.
¶29 L.C. argues that the trial court failed to consider certain relevant
facts. She argues that the trial court failed to consider the severity of her mental
health challenges, especially because the trial court entered default judgment
without seeing L.C. in person in court. Additionally, she argues that the trial court
failed to consider her active engagement in the TPR case. And finally, she argues
that the trial court did not consider alternatives to default judgment, such as a trial
without deposition testimony or a lesser sanction.
¶30 L.C. argues that the trial court failed to consider the severity of her
mental health problems, which could excuse her failure to follow court orders.
She asserts that because the trial court had not seen L.C. in person, it did not
understand the impact of L.C.’s challenges on her conduct. L.C. acknowledges
that the court recognized her mental condition and challenges, but not the severity
of it. Here, L.C. references her stay at Winnebago mental hospital in 2017 as an
indication of the severity of her problems; however, her hospital stay was
discussed at the first sanctions hearing in March 2019. L.C. told the court she had
been found competent and would refuse a new competency examination. The
circuit court appointed the GAL to ameliorate concerns about L.C.’s competence.
The trial court did not benefit from seeing L.C. in court because she missed
15 No. 2020AP796
hearings in September and October 2019. It is unreasonable to hold L.C.’s
absence against the trial court in light of the thorough record it made of L.C.’s
conduct that warranted sanction. We cannot conclude that L.C. offered a clear and
justifiable excuse for her conduct that the trial court ignored or minimized.
¶31 L.C. argues that it was erroneous to enter default judgment against
her because she was active and engaged in the TPR case. The State disagrees that
L.C. was active and engaged. We cannot help but note that L.C.’s failure to attend
depositions resulted in additional court hearings that she did attend; therefore, her
attendance in court cannot be dispositive to determining her active participation or
any trial court error to impose sanctions.
¶32 Finally, L.C. argues that the trial court could have moved forward
with the trial without deposition testimony or could have imposed a lesser
sanction. Both positions ask us to interfere with the court’s management of its
trial practice and its administration of justice. “The general control of the judicial
business before it is essential to the court if it is to function.” Trispel, 89 Wis. 2d
at 733. “The circuit courts have a duty to discourage the protraction of litigation,
preserve judicial integrity, and promote the orderly processing of cases.” Johnson
v. Allis Chalmers Corp., 162 Wis. 2d 261, 281-82, 470 N.W.2d 859 (1991),
overruled by Industrial Roofing, 299 Wis. 2d 81. At the second motion hearing
for sanctions, the circuit court pondered whether the trial could proceed without
deposition testimony. But it did not issue a new discovery order or order the State
16 No. 2020AP796
to proceed with interrogatories or other method of obtaining the information it
sought in deposition. Even if it had issued an order, that non-final order would not
bind the successor court. Whether the State could have proceeded without
deposition is not at issue; rather, we consider whether the court acted reasonably in
administering justice.
¶33 We are persuaded that the court balanced the fair consideration of
the claims against L.C. and the desire for a permanency plan for M.S. Jr. It did not
rush the case, but it did not allow it to linger. “A continuing failure to sanction
may be perceived by the noncomplying party and other litigants as a green light to
flaunt court orders.” Id. Our review of the record shows the court giving L.C.
many chances to contest the TPR—including three hearings for L.C. to appear
with counsel and three trial dates before the court heard testimony on the facts of
the TPR. As for argument that the trial court could have imposed a lesser
sanction, we find it reasonable that the trial court considered default to be the only
sanction that would allow the case to move forward. Any lesser sanction, such as
barring evidence to support her claims, would have still allowed L.C. to delay the
trial by not appearing and not cooperating.
¶34 We conclude that the trial court did not erroneously exercise its
discretion to impose default judgment as a sanction. The trial court then went on
to fulfill its duties to hear the State’s proof of the TPR charges, it maintained
L.C.’s appointment of counsel, and it encouraged L.C.’s participation in the
17 No. 2020AP796
dispositional phase of the TPR. For the foregoing reasons, we affirm the trial
court.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)(4).