State v. R. A. M.

2024 WI 26, 8 N.W.3d 349, 994 N.W.2d 18, 408 Wis. 2d 794

• Court: Wisconsin Supreme Court
• Decided: June 25, 2024
• Docket: 2023AP000441
• Status: Published

Opinion

2024 WI 26

SUPREME COURT OF WISCONSIN CASE NO.: 2023AP441

COMPLETE TITLE: In re the termination of parental rights to P. M., a person under the age of 18:

State of Wisconsin, Petitioner-Respondent, v. R. A. M., Respondent-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 408 Wis. 2d 794, 994 N.W.2d 18 (2023 - unpublished)

OPINION FILED: June 25, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 24, 2024

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Ellen R. Brostrom

JUSTICES: KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion in which HAGEDORN, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the guardian ad litem, there were briefs filed by Courtney L.A. Roelandt and The Legal Aid Society of Milwaukee, INC., Milwaukee. There was an oral argument by Courtney L.A. Roelandts. For the petitioner-respondent, there was a brief filed by Jenni S. Karas, assistant district attorney. There was an oral argument by Jenni S. Karas, assistant district attorney.

For the respondent-appellant, there was a brief filed by Pamela Moorshead, assistant state public defender. There was an oral argument by Pamela Moorshead, assistant state public defender.

2 2024 WI 26 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2023AP441 (L.C. No. 2021TP159)

STATE OF WISCONSIN : IN SUPREME COURT

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

State of Wisconsin, FILED JUN 25, 2024 Petitioner-Respondent, Samuel A. Christensen Clerk of Supreme Court v.

R. A. M.,

Respondent-Appellant.

KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, DALLET, and PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion in which HAGEDORN, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 JILL J. KAROFSKY, J. This case concerns whether the

circuit court1 lawfully terminated R.A.M.'s parental rights. Our

1The Honorable Ellen R. Brostrom of the Milwaukee County Circuit Court presided. No. 2023AP441

task is to interpret Wis. Stat. § 48.23(2)(b)3. (2021-22)2 in

order to answer two questions. First, was the court required to

wait at least two days before proceeding to a dispositional

hearing once the court found R.A.M.'s conduct in failing to

appear as ordered was "egregious and without clear and

justifiable excuse"? And second, did the court lack competency

to conduct the dispositional hearing because it failed to wait

the statutorily mandated two days before proceeding? We hold

that the circuit court was statutorily bound to wait at least

two days before holding a dispositional hearing under

§ 48.23(2)(b)3. Because those two days are central to the

statutory scheme in ch. 48, the circuit court lacked competency

when it proceeded to the dispositional phase without abiding by

the statutorily mandated waiting period. Therefore, R.A.M. is

entitled to a new dispositional hearing.

I. BACKGROUND

¶2 R.A.M. is the parent of P.M., a son born in February

2015.3 In 2017, a police officer who was already in R.A.M.'s apartment building for an unrelated reason heard a woman

shouting, a child crying loudly, and a loud thump, after which

he said the child became louder. The officer knocked on the

door, and R.A.M. allowed the officer to enter the residence.

The officer found P.M. with scratches, bruising, and bleeding

2All subsequent references to the Wisconsin Statutes are to the 2021-22 version. 3P.M.'s father passed away in 2020, and his rights are not at issue in this case.

2 No. 2023AP441

from the nose. R.A.M. was the only adult present at the time of

the incident. She was subsequently convicted of one count of

Child Abuse——Recklessly Causing Harm, and was sentenced to one

year of initial confinement and two years of extended

supervision. Immediately following the incident, the State

placed P.M. in foster care. In 2019, P.M. was placed with his

paternal uncle, with whom he continues to reside.

¶3 The State filed the present petition for the

termination of R.A.M.'s parental rights in 2021, after P.M. had

resided outside of R.A.M.'s home for more than three years. The

grounds for the petition were that P.M. was a child with a

continuing need for protection and services (CHIPS) under Wis.

Stat. § 48.415(2) and that R.A.M. had failed to assume parental

responsibility under § 48.415(6). R.A.M. contested both

grounds, and a court trial began on March 28, 2022. Two

additional hearing dates were set in March and April of 2022,

both of which R.A.M. attended. When more time was needed to

conclude the grounds phase and hold a dispositional hearing,4 the court set three more dates in July (5, 6 and 15).

¶4 On July 5, 2022, R.A.M. failed to appear in court.

The parties disagree as to the cause of R.A.M.'s absence;

however, there is no dispute that the judge had previously

Termination of parental rights cases proceed in two 4

phases. In the grounds phase of the proceeding, the petitioner must prove by clear and convincing evidence that at least one of the grounds for termination of parental rights enumerated in Wis. Stat. § 48.415 exists. If the petitioner does so, the case proceeds to the dispositional phase, where the court must determine whether the termination of parental rights is in the best interest of the child. Wis. Stat. § 48.426(2).

3 No. 2023AP441

issued a standing order requiring R.A.M. to attend all court

appearances or risk being found in default. When R.A.M. did not

appear, the State and the guardian ad litem asked the court to

enter a default judgement against R.A.M. in the grounds phase.

The circuit court made the following finding:

[S]he was ordered to be here this morning and we can't proceed on the merits without her. The State is prejudiced in not being able to finish its cross- examination. I think she's misleading the Court; I think she's misleading [her counsel] in her version of the events. And I do find that to be egregious and bad faith and without justification. The court then granted the Petitioners' motion for default

judgment.5

¶5 At the conclusion of the grounds phase, the court

found that the State proved by clear and convincing evidence

both a continuing need for CHIPS and a failure to assume

parental responsibility. As a result, the court determined that

R.A.M. was an unfit parent.

¶6 The court immediately moved to the dispositional phase

and concluded the dispositional hearing on that same day without R.A.M. present.6 The court found that termination would be in

the best interest of P.M. and ordered the termination of

R.A.M.'s parental rights.

R.A.M. does not challenge the egregiousness finding, so we 5

do not examine that issue here.

The court held the dispositional hearing on July 5, even 6

though it had reserved two other days in July to potentially accommodate a dispositional hearing and had assured R.A.M.'s attorney that R.A.M. would be not be precluded from participating were she to appear in court the following day.

4 No. 2023AP441

¶7 R.A.M. appealed, and the court of appeals reversed the

order terminating her parental rights. That court held that the

circuit court lost competency when it proceeded to the

dispositional hearing on the same day that the grounds phase

concluded. The court of appeals also held that R.A.M.'s due

process rights were violated. The case was remanded to the

circuit court with instructions to hold a new dispositional

hearing. Subsequently, the guardian ad litem filed a petition

for review, which this court granted.

II. ANALYSIS

¶8 We begin by interpreting Wis. Stat. § 48.23(2)(b)3.,

and determine that the circuit court was required to wait at

least two days after finding R.A.M.'s conduct in failing to

appear as ordered was egregious and without justification before

proceeding to the dispositional phase of proceedings. We then

address whether the circuit court lacked competency to proceed

to the dispositional hearing without abiding by the waiting

period, and we determine that it did. A. Interpreting Wis. Stat. § 48.23(2)(b)3.

¶9 This is a case of statutory interpretation. We review

questions of statutory interpretation de novo. State v.

Forrett, 2022 WI 37, ¶5, 401 Wis. 2d 678, 974 N.W.2d 422. We

interpret statutes by discerning the plain meaning of the

language in the context of the statute. "If the meaning of the

statute is plain, we ordinarily stop the inquiry." State ex

rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quotations omitted). We use the

5 No. 2023AP441

"common, ordinary, and accepted meaning" of words absent a

technical or specially defined usage or meaning. Id.

"Statutory language is read where possible to give reasonable

effect to every word, in order to avoid surplusage." Id., ¶46.

¶10 To resolve this case we must interpret Wis. Stat.

§ 48.23(2)(b)3., which reads in pertinent part:

[A] parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure 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. If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding. (Emphasis added).

¶11 The crux of this case is the last sentence of Wis.

Stat. § 48.23(2)(b)3. (underlined above), which presents a

straightforward conditional statement. If the court finds that

the parent's failure to appear as ordered was "egregious and

without clear and justifiable excuse," then the court "may not"

hold a dispositional hearing until at least two days after the

court made the egregiousness finding.

¶12 No party contests that the "if" condition was met here, and for good reason. The court ordered R.A.M. to appear

6 No. 2023AP441

in person, and R.A.M. failed to do so. Then the court found her

failure to appear to be "egregious" and "without justification."

Because the "if" condition was met, the last sentence of

§ 48.23(2)(b)3. requires the court to wait at least two days

before conducting a dispositional hearing. Here the court

violated § 48.23(2)(b)3. when it failed to abide by the

statutorily imposed waiting period.

¶13 The petitioners disagree with this application, but do

not meaningfully contend with the conditional statement

discussed above. Instead, they urge us to consider the statute

in context, and argue that a waiver of counsel must occur in

order for the subdivision to apply. Additionally, petitioners

insist that the statute is ambiguous. To resolve the ambiguity,

petitioners encourage us to look to both the statute's title and

its legislative history.

¶14 Petitioners maintain that the last sentence of

§ 48.23(2)(b)3. should be read in context with the full statute.

According to the petitioners, such a reading leads to the conclusion that the two-day waiting period applies only when a

parent has waived their right to counsel (or when counsel has

withdrawn or been discharged——the petitioners are inconsistent

on this point). We are not persuaded. While we agree that

analyzing the last sentence in context is essential ("statutory

language is interpreted in the context in which it is used; not

in isolation but as part of a whole," Kalal 271 Wis.2d 633, ¶46)

we see no support in the text for petitioners' assumption regarding waiver of counsel. When (as here) a parent fails to

7 No. 2023AP441

appear as ordered, and the court finds the parent's failure to

appear egregious and unjustified, then Wis. Stat.

§ 48.23(2)(b)3. provides for two consequences. First, the

statute creates a statutory presumption that the parent has

waived counsel, and second the statute imposes a waiting period

for a dispositional hearing. Once a court makes the

egregiousness finding, the two-day waiting period is triggered.

The statute does not require additional unwritten elements such

as the waiver of counsel, the withdrawal of counsel, or the

discharge of counsel, in order for the two-day waiting period to

apply. In short, the statute's two-day waiting period language

is plain and unambiguous.

¶15 Because the conditions that trigger the two-day

waiting period are plain and unambiguous, we will not use Wis.

Stat § 48.23's title——"right to counsel"——to create ambiguity or

rewrite the plain text of the statute. Statutory titles may be

helpful "for the purpose of relieving ambiguity," but

ultimately, "titles are not part of the statutes." State v. Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 410, 906 N.W.2d 158,

170 (internal quotation marks and alterations omitted); see also

Williams v. Am. Transmission Co., 2007 WI App 246, ¶12, 306 Wis.

2d 181, 742 N.W.2d 882 (Ct. App. 2007) ("Wisconsin courts

ordinarily follow the rule that, although statutory titles may

assist in resolving ambiguity in statutory language, statutory

titles cannot be used to create ambiguity."). Therefore, the

title of the statute does not alter our understanding of the

8 No. 2023AP441

statute, or compel us to add any additional conditions for the

two-day waiting period to occur.

¶16 Similarly, when the meaning of a statute is plain, we

do not consult legislative history to ascertain its meaning.

See Kalal, 271 Wis. 2d 633, ¶51 ("This rule generally prevents

courts from tapping legislative history to show that an

unambiguous statute is ambiguous." (internal quotations

omitted)). Consequently, we do not consult the statutory title

or legislative history in this case, or use either of them to

supplant the language of the statute itself.

¶17 To summarize, Wis. Stat. § 48.23(2)(b)3. is

unambiguous, allowing us to rely on its plain language without

reliance on extrinsic sources. That plain language dictates

that when a court finds that a parent's failure to appear was

egregious and without justifiable excuse, there is a presumption

that the parent has waived their right to counsel, and,

importantly for this case, the court must wait two days to hold

the dispositional hearing.7 B. Lack of Competency

¶18 Having determined that the circuit court violated Wis.

Stat. § 48.23(2)(b)3. by failing to wait two days to hold the

dispositional hearing, we next must determine whether the court

lacked competency to hold the dispositional hearing before the

two days had elapsed. This is a question of law that this court

Our determination that the two-day waiting period applies 7

is dispositive. Therefore, we decline to address whether a waiver of the right to counsel occurred here, or delve further into the statutory presumption of waiver.

9 No. 2023AP441

reviews independently. Village of Trempeleau v. Mikrut, 2004 WI

79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.

¶19 The two-day waiting period at issue here is couched in

mandatory language. The statute states that if a court makes an

egregiousness finding, it may not proceed to a dispositional

hearing without waiting two days. "'May not' is a negative

term. Where statutory restrictions are couched in negative

terms, they are usually held to be mandatory." Brookhouse v.

State Farm Mut. Auto. Ins. Co., 130 Wis. 2d 166, 170, 387 N.W.2d

82 (Ct. App. 1986). Interpreting a similar "may not" structure,

the court of appeals wrote in Brookhouse: "Negative words in a

grant of power should never be construed as directory. Where an

affirmative direction is followed by a negative or limiting

provision, it becomes mandatory. Thus, where the statute says

that the time for motions after verdict may not be enlarged,

these are negative words regarding the grant of power. We hold

that the language is mandatory." Id. (internal citations

omitted). And here the circuit court clearly failed to follow the statute's mandate.

¶20 Given the circuit court's failure to follow the

statutory mandate, we must next decide if that failure resulted

in a loss of competency. As we said in Mikrut, a court's

"failure to comply with a statutory mandate pertaining to the

exercise of subject matter jurisdiction may result in a loss of

the circuit court's competency to adjudicate the particular case

before the court." Mikrut, 273 Wis. 2d 76, ¶9.

10 No. 2023AP441

¶21 Not all errors of statutory compliance result in a

loss of competency. However, when a circuit court's error is

central to the statutory scheme, a loss of competency results.

"Many errors in statutory procedure have no effect on the

circuit court's competency. Only when the failure to abide by a

statutory mandate is 'central to the statutory scheme' of which

it is a part will the circuit court's competency to proceed be

implicated." Id., ¶10.

¶22 This court has previously held that statutory time

limits in ch. 48 cases are central to the statutory scheme. In

Sheboygan Cnty. Dep't of Soc. Servs. v. Matthew S., 2005 WI 84,

¶36, 282 Wis. 2d 150, 698 N.W.2d 631, a termination of parental

rights case, we held that a failure to adhere to statutory time

limits in ch. 48 cases violates the central scheme of the

statute and therefore the court lacked competency to proceed.

¶23 It is true that the legislature subsequently passed

Wis. Stat. § 48.315(3), stating that the failure "by the

court . . . to act within any time period specified in [Chapter 48] does not deprive the court . . . of competency."

Importantly, however, the failure to act within a time

limitation is not at issue in this case. Instead, this case is

about a failure to wait an adequate amount of time before

proceeding. The legislature has not passed a law concerning a

court's failure to abide by a ch. 48 mandatory waiting period.

Therefore, we must evaluate whether or not the two-day waiting

period requirement is central to the statutory scheme of ch. 48

11 No. 2023AP441

such that a violation of the requirement deprives the court of

competency.

¶24 Here, we conclude that the two-day waiting period is

central to the statutory scheme. The two-day waiting period

serves as a basic procedural safeguard for parents in

termination of parental rights proceedings, potentially

providing them opportunity to participate in the disposition

hearing, or to ask the court to reconsider a default judgment

following an egregiousness finding. See Wis. Stat.

§§ 48.427(1); 48.23(2)(c). Affording parents basic procedural

safeguards serves the express legislative purpose of providing

"judicial and other procedures through which children and all

other interested parties are assured fair hearings." Wis. Stat.

§ 48.01(1)(ad). The requirement also serves the underlying

purpose of ch. 48: "the best interests of the child . . . shall

always be of paramount consideration." See Wis. Stat.

§ 48.01(1). This is true not least because a brief, two-day

window may allow certain matters to be resolved that would otherwise result in months or even years of appeal. The waiting

period is therefore no mere technical requirement, but is

instead central to the statutory scheme of ch. 48.

¶25 Because the two-day waiting period is central to the

statutory scheme, a court lacks competency to proceed to a

dispositional hearing when it fails to wait at least two days

after finding a parent's absence to be egregious and

12 No. 2023AP441

unjustifiable. As a result, we hold that the circuit court here

lacked competency to proceed with the dispositional hearing.8

III. CONCLUSION

¶26 We affirm the court of appeals' ruling and remand for

proceedings consistent with this decision. The circuit court

violated Wis. Stat. § 48.23(2)(b)3. when it failed to wait at

least two days before proceeding to a dispositional hearing once

the court found R.A.M.'s absence was "egregious and without

clear and justifiable excuse." Consequently, the court lacked

competency to proceed in this case and R.A.M. is therefore

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

affirmed.

8Because we determine that the circuit court lacked competency to proceed with the dispositional hearing, we do not address R.A.M.'s alternative argument that the failure to wait two days violated her due process rights. Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that are not dispositive need not be addressed." (citation omitted)).

13 No. 2023AP441.akz

¶27 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). What

happens when a parent, who is represented by a lawyer, fails to

attend the fourth day of a termination of parental rights

("TPR") trial,1 even though the court ordered her to attend? For

the majority opinion, the parent's intentional violation of the

court order and choice not come to court results in her being

able to control the outcome of the proceeding, derail stability

for the child, and undermine the circuit court's conclusion that

parental rights be terminated. "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 [a

child's life] continue[s] to hang in the balance." Dane Cnty.

Dep't of Human Servs. v. Mabel K., 2013 WI 28, ¶76, 346

Wis. 2d 396, 828 N.W.2d 198 (Ziegler, J., dissenting). I

dissent.

¶28 The purpose of the TPR statutes is to provide

predictability, permanency, and stability for the child. Wis.

Stat. § 48.01(1)(ag).2 In pursuit of this purpose, "[t]he courts

1 Judge Ellen R. Brostrom of the Milwaukee County circuit court presided. 2 Wisconsin Stat. § 48.01(1)(ag) provides:

To recognize that children have certain basic needs which must be provided for, including the need for adequate food, clothing and shelter; the need to be free from physical, sexual or emotional injury or exploitation; the need to develop physically, mentally and emotionally to their potential; and the need for a safe and permanent family. It is further recognized that, under certain circumstances, in order to ensure that the needs of a child, as described in this paragraph, are provided for, the court may determine that it is in the best interests of the child for the 1 No. 2023AP441.akz

and agencies responsible for child welfare should also recognize

that instability and impermanence in family relationships are

contrary to the welfare of children," so they exist to help

"eliminat[e] the need for children to wait unreasonable periods

of time for their parents to correct the conditions that prevent

their safe return to the family." § 48.01(1)(a). But the

opposite is happening for this child. P.M.'s best interests

have not been paramount. P.M. has been left waiting in a place

of ongoing instability for his biological mother, R.A.M., to

correct the conditions preventing his safe return. P.M. has

suffered long periods of instability and impermanence,

culminating in the State's petition to terminate R.A.M.'s

parental rights to P.M.

¶29 R.A.M. failed to appear for a court-ordered trial date

in the TPR proceeding. Despite having knowledge of the TPR

trial and of the court order requiring her attendance, R.A.M.

chose not to attend day four of the scheduled TPR trial. In

situations such as these, the statutes do not divest the circuit court of the ability to enter default, sanction the non-

appearing parent, and proceed to disposition. R.A.M. was

represented by a lawyer, who advocated for her in court. The

court never dismissed R.A.M.'s counsel from representation. In

fact, counsel actively represented R.A.M. We must afford

deference to the circuit court's credibility determinations and

ability to default the non-appearing party. R.A.M. chose to not

child to be removed from his or her parents, consistent with any applicable law relating to the rights of parents.

2 No. 2023AP441.akz

attend the "grounds phase" of the hearing, and the circuit court

proceeded immediately to disposition, ultimately granting the

State's petition to terminate R.A.M.'s parental rights.

¶30 To be clear, the record reflects that R.A.M.

understood the gravity of these proceedings. The record is

replete with unpleasant facts demonstrating R.A.M. had

unfortunately been down this road before.3 The court clearly

ordered her to attend the TPR proceedings. R.A.M. was informed

of the consequences of failing to attend. Yet, R.A.M. chose,

for whatever reason, not to appear.

¶31 The majority errs in applying the timing requirements

of Wis. Stat. § 48.23(2)(b)3. to the facts and procedural

posture of this case. Section 48.23 addresses the right to

counsel and waiver of counsel, not default. While the title of

a statute is not dispositive,4 the words of the statute are, and

every single part of that statute deals with TPR proceedings and

whether a parent has a right to counsel. Here, R.A.M. had

counsel, and counsel was present and actively participated at

3This case presents a statutory claim. To that end, R.A.M.'s familial history, which pre-dates the TPR proceeding involving P.M., are simply illustrative. But, they are illustrative in speaking to R.A.M.'s general knowledge and cognizance of court proceedings in general, and TPR proceedings specifically. Her experience with the system, and the court's recognition of her track record of appearing for court proceedings, belie any insinuation that R.A.M.'s decision to not obey a court order to appear in this proceeding was done unknowingly or unwittingly. 4See Wis. Stat. § 990.001(6) ("Statute titles and history notes.") "The titles to subchapters, sections, subsections, paragraphs and subdivisions of the statutes and history notes are not part of the statutes."

3 No. 2023AP441.akz

R.A.M.'s TPR trial. Counsel was never even presumed waived.

The statute the majority relies upon is inapplicable here.

¶32 The majority misapplies the second subsection of Wis.

Stat. § 48.23 to reverse the circuit court's decision to proceed

immediately to disposition. However, the language of that

subsection addresses when a parent is presumed to have waived

their right to counsel by their conduct. As the record clearly

demonstrates, the court never found a presumption that R.A.M.

waived counsel. Counsel was present in court and meaningfully

participated. Waiver of counsel was never discussed. A finding

of waiver of counsel was never made. In fact, the court's

finding, that R.A.M. egregiously failed to appear in the

courtroom,5 was made pursuant to a standard default judgment

sanction with her counsel present, not a waiver of counsel

standard. Hence, the majority applies a statute addressing

5 A finding of egregiousness pursuant to a default sanction for a parent's failure to appear at a TPR trial is important because "the extreme sanction of dismissal or default judgment may not be imposed for mere nonappearance, in the absence of a showing of bad faith or egregious conduct." Schneider v. Ruch, 146 Wis. 2d 701, 706, 431 N.W.2d 756 (Ct. App. 1988); see also Dane Cnty. Dep't of Human Servs. v. Mabel K., 2013 WI 28, ¶100, 346 Wis. 2d 396, 828 N.W.2d 198 (Ziegler, J., dissenting) ("Before a circuit court may sanction a party who failed to comply with a court order, the party's conduct must be egregious or in bad faith."); Adolph Coors Co. v. Movement Against Racism, 777 F.2d 1538, 1542 (11th Cir. 1985) ("[T]he decision to enter a default judgment ought to be the last resort——ordered only if noncompliance is due to willful or bad disregard of court orders."); United States v. DeFrantz, 708 F.2d 310, 311 (7th Cir. 1983) (holding that the federal rules of civil procedure "authorizes the entry of a default judgment as a sanction for a defendant's failure to show up at his deposition, whether or not the court has ordered him to attend, . . . but the sanction is proper only if the failure [to show up] is willful").

4 No. 2023AP441.akz

presumed waiver of counsel via conduct to the wrong context.

The majority relies on the wrong statute to impose time

constraints which handcuff the circuit court from acting.

¶33 In summary, the facts of this case demonstrate that

the majority is not properly applying this statutory scheme.

R.A.M. can be sanctioned for violating a court order by

absenting herself from these proceedings. Default judgment is

an appropriate sanction for R.A.M.'s nonattendance.

¶34 As the majority lays out, TPR cases follow a

bifurcated process——grounds and disposition. Majority op., ¶3

n.4. At the grounds phase, the State must prove by clear and

convincing evidence that at least one of the statutory grounds

for termination of parental rights exist. Wis. Stat. § 48.415.

If the State succeeds in making this showing, the case proceeds

then to the dispositional phase. At the dispositional phase,

the court must determine whether terminating parental rights is

in the best interests of the child. Wis. Stat. § 48.426(2). ¶35 "Parental rights termination adjudications are among

the most consequential of judicial acts, involving as they do

'the awesome authority of the State to destroy permanently all

legal recognition of the parental relationship.'" Steven V. v.

Kelley H., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678 N.W.2d 856

(quoting Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246

Wis. 2d 1, 629 N.W.2d 768 (quoting another source)). "The profound consequences of termination have necessitated the

development of detailed statutory requirements [as] set out in 5 No. 2023AP441.akz

Subchapter VIII of Chapter 48." Sheboygan Cnty. Dep't of Health

& Human Servs. v. Julie A.B., 2002 WI 95, ¶23, 255 Wis. 2d 170,

648 N.W.2d 402. Chapter 48, also known as the "Children's

Code," directs that "[i]n construing this chapter, the best

interests of the child . . . shall always be of paramount

consideration." Wis. Stat. 48.01(1); see also Darryl T.-H. v.

Margaret H., 2000 WI 42, ¶33, 234 Wis. 2d 606, 610 N.W.2d 475

("The best interests of the child is the polestar of all

determinations under ch. 48, the Children's Code."); David S. v.

Laura S., 179 Wis. 2d 114, 149-50, 507 N.W.2d 94 (1993) ("The

legislature and this court have made clear that the best

interests of the child is the polestar of all determinations

under ch. 48.").

¶36 R.A.M., who was appointed a lawyer, contested the TPR

petition. The record reflects that she understood the court's

standing order that she was required to appear in person for all

court appearances and could be found in default for failing to

appear. The court informed R.A.M. of the standing orders in her case, including ordering R.A.M. to "make all court appearances"

and warning that if she failed to do so, "[the court] could find

you in default in which we would be making decisions without

your input." The court further ordered that R.A.M.

communicate with and cooperate with your attorney once you get one, and you respond to any discovery should that come about with their help and also continue to comply with the CHIPS dispositional order.

Again, any failure to do those things could result in a default judgment. Okay?

[R.A.M.]: All right. 6 No. 2023AP441.akz

THE COURT: All right. We will get an adjourned initial appearance date. ¶37 R.A.M. appeared for the first three dates of the

scheduled bench trial on March 28 and 31, 2022, and April 1,

2022. She was present when the court scheduled three more trial

dates for July 5, 6, and 15, 2022. R.A.M. failed to appear for

the July 5 trial date. Interestingly, that was the date the

State would have had the opportunity to cross-examine her.

¶38 The court gave counsel an opportunity to call R.A.M.

R.A.M. said she was "attempting to clear a bench warrant issued

for a criminal complaint with interference with custody." State

v. R.A.M., No. 2023AP441, ¶7, unpublished slip op. (Wis. Ct.

App. June 6, 2023). R.A.M. claimed she was only recently made

aware of the warrant. Id. R.A.M. further claimed that she was

advised to contact the sheriff department and was told to

contact the local police.

¶39 According to the State, R.A.M. had ample opportunity

to resolve the warrant prior to her missed trial date. The

trial court questioned the advice that R.A.M. had "purportedly"

received. The court noted that the warrant had been filed on

June 22, 2022, well before the trial date. The court concluded

that R.A.M. had opportunity to resolve the case before a warrant

was issued and that her testimony conflicted with other facts.

¶40 The State made a motion for default judgment and to

"strike [R.A.M.'s] contest posture and find her in default for

failing to comply with court orders and failing to appear here

in court." R.A.M., No. 2023AP441, ¶8. The guardian ad litem ("GAL") joined the motion.

7 No. 2023AP441.akz

¶41 The court weighed the credibility of R.A.M.'s reason

for not appearing, noting that it was "conveniently timed." The

court did not immediately grant the motion and instead gave

R.A.M. time to appear later that day. Following a break in the

afternoon proceedings, "the court, after discussion with the

prosecutor and the family case manager, decided R.A.M. may not

have been candid with trial counsel" and concluded that R.A.M.'s

story was not credible. R.A.M., No. 2023AP441, ¶12. The

circuit court further concluded that the State was prejudiced by

R.A.M.'s nonappearance and inability to finish its cross-

examination, and that the court was being manipulated by R.A.M.

After an afternoon recess, the court concluded that the State

proved both grounds for termination as alleged in the petition.

It found that R.A.M.'s failure to appear was "egregious, in bad

faith, and without justification." The circuit court made an

egregiousness finding, specifically addressing R.A.M.'s counsel

in declaring that

[R.A.M.'s] story does not seem credible. I -- I think she's manipulating all sorts of systems. But again, she was ordered to be here this morning, and we can't proceed on the merits without her. The State is prejudiced in not being able to finish its cross- examination. I think she's misleading the Court; I think she's misleading you in her version of the events. And I do find that to be egregious and bad faith and without justification.

So at this point, I am going to grant the State's motion. I am going to strike her contest posture.

I can, I think, use the testimony and evidence that's already been admitted for prove-up, and then we'll move to disposition.

8 No. 2023AP441.akz

The court stated that it would entertain a motion to re-open the

default if R.A.M. appeared the next day, but "[o]nly if she's

got . . . a really good reason with solid documentation."

However, the circuit court then decided to proceed immediately

to the dispositional stage. The record reflects that testimony

was taken from the family case manager. R.A.M.'s counsel

participated in the "grounds" and "disposition" proceedings, in

fact conducting cross-examination, lodging objections, and

making closing arguments. The record is not clear that R.A.M.

had any witnesses to present, except potentially for herself.

¶42 Ultimately, the court concluded that it was "in

[P.M.'s] best interest that" the court terminate R.A.M.'s

rights. The circuit court therefore granted the TPR petition,

entered an order terminating R.A.M.'s rights, and vacated the

two remaining trial dates. The circuit court sanctioned her

non-appearance, and entered default judgment against R.A.M.

¶43 R.A.M. appealed. The court of appeals reversed the

circuit court's TPR order:

[I]f [Wis. Stat. ]§ 48.23(2)(b)3. applies to the case before the court——meaning the court has found the parent waived a right to counsel——then, the court may not immediately proceed to disposition and must wait at least the two days required by statute (and not more than forty-five days, as is also required). When the court fails to obey the statutory time periods, it not only lacks competency to proceed, it violates the parent's right to due process. R.A.M., No. 2023AP441, ¶40. The GAL petitioned this court for

review. The argument made before us is that the circuit court's failure to abide by a two-day delay before proceeding to

9 No. 2023AP441.akz

disposition violated the requirements of § 48.23(2)(b)3. That

statute is inapplicable to the facts of this case.6

II. WISCONSIN STAT. § 48.23(2)(b)3.

¶44 Wisconsin Stat. § 48.23 is entitled "Right to

counsel." This section contains the subsection at issue: Wis.

Stat. § 48.23(2), entitled "Right of parent to counsel," which

states:

Notwithstanding subd. 1, a parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse. If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding. § 48.23(2)(b)3.

6 Because the record does not reflect that R.A.M.'s counsel was presumed waived, I determine that Wis. Stat. § 48.23(2)(b)3. is not applicable. The circuit court did not violate the statute when it proceeded to disposition after making an egregiousness finding. Since I do not find the circuit court to have violated an inapplicable statute, I do not reach the second question of whether the circuit court lost competency to proceed. Bergmann v. McCaughtry, 211 Wis. 2d 1, 6, 564 N.W.2d 712 (1997) ("Because our resolution of the first issue is dispositive, we need not and do not address the second . . . issue.").

10 No. 2023AP441.akz

¶45 Statutory interpretation begins with the language of

the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The purpose

of our inquiry is to give the statute "its full, proper, and

intended effect." Id., ¶44. "Context is important to meaning."

Id., ¶46. "[S]tatutory language is interpreted in the context

in which it is used; not in isolation but as part of a whole; in

relation to the language of surrounding or closely-related

statutes; and reasonably, to avoid absurd or unreasonable

results." Id. "A statute's purpose or scope may be readily

apparent from its plain language or its relationship to

surrounding or closely-related statutes——that is, from its

context or the structure as a coherent whole." Id., ¶49.

¶46 The majority ignores Wis. Stat. § 48.23(2)(b)3.'s

contextual clues to hyper-fixate on the last sentence of the

statute, see majority op., ¶11, which states:

If the court finds that a parent's conduct in failing to appear in person as ordered was egregious and without clear and justifiable excuse, the court may not hold a dispositional hearing on the contested adoption or involuntary termination of parental rights until at least 2 days have elapsed since the date of that finding. When we interpret statutes, we begin with the language of the

statute. Kalal, 271 Wis. 2d 633, ¶45. So, while "[c]ontext is

important to meaning," id., ¶46, we cannot isolate portions of a

statute's plain language to analyze while ignoring the rest.

Rather, the "statutory language is interpreted in the context in

which it is used; not in isolation but as part of a whole . . . ." Id. 11 No. 2023AP441.akz

¶47 The language of this entire statute is plain: This

statute deals with waiver of counsel. Wisconsin Stat.

§ 48.23(2)(b)3. addresses the scenario in which a parent, by

their conduct, is presumed to have waived their right to

counsel. This understanding of the statute mirrors the plain

language of the sentences which immediately precede the sentence

the majority focuses on, which references when a parent over 18

years of age is presumed to have waived counsel.7 This

understanding of the statute is further reflected in the

subsection which immediately follows the sentence the majority

7 The majority, in focusing on the final sentence of Wis. Stat. § 48.23(2)(b)3. as the "crux of this case," majority op., ¶11, completely ignores the rest of the statute from which they pulled the final sentence. The purpose of conducting statutory interpretation is to give the statute "its full, proper, and intended effect." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We cannot give § 48.23(2)(b)3. its "full proper, and intended effect" if we excise the final sentence in a paragraph from the sentences which immediately precede it in that same paragraph. These preceding sentences provide important context aiding in determining the statute's meaning, that this two-day delay statutory scheme is implicated in situations in which a parent, by their conduct, is presumed to have waived their right to counsel. Section 48.23(2)(b)3.'s opening sentences state:

Notwithstanding subd. 1, a parent 18 years of age or over is presumed to have waived his or her right to counsel and to appear by counsel if the court has ordered the parent to appear in person at any or all subsequent hearings in the proceeding, the parent fails to appear in person as ordered, and the court finds that the parent's conduct in failing to appear in person was egregious and without clear and justifiable excuse. Failure by a parent 18 years of age or over to appear at consecutive hearings as ordered is presumed to be conduct that is egregious and without clear and justifiable excuse.

12 No. 2023AP441.akz

focuses on, which again deals with waiver of counsel.8 As the

plain language of the statute shows, this entire statutory

scheme deals with the waiver of counsel. This statute is

intended to apply to situations in which a parent, by their

conduct, is presumed to have waived their right to counsel.

¶48 Because the statutory meaning is plain, we need not

consult the statute's title. But even if we do, the title of

this statute "provide[s] further confirmation for our plain

meaning analysis"9 that the statute is only concerned with the

right to counsel. State v. Lopez, 2019 WI 101, ¶25, 389

Wis. 2d 156, 936 N.W.2d 125.

¶49 The statute at issue here, Wis. Stat. § 48.23(2)(b)3.,

"Right of parent to counsel," clearly deals with the right to

counsel. It is a subsection of Wis. Stat. § 48.23, entitled

"Right to counsel," which deals entirely with whether a parent

Wis. Stat. § 48.23(2)(c) ("In a proceeding to vacate or 8

reconsider a default judgment granted in an involuntary termination of parental rights proceeding, a parent who has waived counsel under par. (b)1. or who is presumed to have waived counsel under par. (b)3. in the involuntary termination of parental rights proceeding shall be represented by counsel, unless in the proceeding to vacate or reconsider the default judgment the parent waives counsel as provided in par. (b)1. or is presumed to have waived counsel as provided in par. (b)3.").

While not dispositive, statute titles do provide valuable 9

"[c]ontext [which] is important to meaning." Kalal, 271 Wis. 2d 633, ¶46; see also Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996) ("Although titles are not part of statutes, . . . they may be helpful in interpretation."); Wis. Stat. § 990.001(6) ("The titles . . . of the statutes . . . are not part of the statutes."); State v. Lopez, 2019 WI 101, ¶25, 389 Wis. 2d 156, 936 N.W.2d 125 ("Statute titles are not dispositive.").

has a right to counsel, the process of accessing counsel, waiver

of counsel, and more.10

¶50 The facts of this case are also clear. R.A.M. was

represented by counsel throughout the TPR proceedings. Counsel

advocated on her behalf. The court never once discussed waiver

of counsel. The issue never came up. Nor did the court make

any findings relating to waiver of counsel. Such would be

required if waiver of counsel occurred. In short, this case had

nothing to do with R.A.M. having the right to representation of

counsel. The circuit court ultimately determined that R.A.M.'s

failure to appear when the court had ordered her to, to be the

reason why the court found R.A.M. to have engaged in "egregious

conduct." Wisconsin Stat. § 48.23 is, therefore, not even

applicable.

¶51 Instead, as the record shows, the court's

egregiousness finding was made pursuant to a standard default

judgment sanction. The circuit court found that R.A.M. was not

being honest about her reasons for failing to appear as the court ordered her to, and determining that R.A.M.'s behavior was

not forthcoming, the circuit court granted default judgment

against R.A.M. Notably, R.A.M.'s counsel was still present and

still representing R.A.M. even in R.A.M.'s absence. These

factual findings are due our deference. See Wis. Stat.

See e.g., Wis. Stat. § 48.23 "Right to counsel"; 10

§ 48.23(2) "Right of parent to counsel"; § 48.23(3) "Power of the court to appoint counsel"; § 48.23(4) "Providing counsel"; § 48.23(4m) "Discharge of counsel"; § 48.23(5) "Counsel of own choosing."

14 No. 2023AP441.akz

§ 805.17(2) ("Findings of fact shall not be set aside unless

clearly erroneous . . . ."); State v. Williams, 2002 WI 1, ¶5,

249 Wis. 2d 492, 637 N.W.2d 733 ("An appellate court reviews the

circuit court's findings of fact under the clearly erroneous

standard of review."). There was no waiver of counsel connected

to these egregiousness findings. R.A.M.'s counsel was still

present and representing her.

¶52 Given this context, we are not in a waiver of counsel

posture as required under Wis. Stat. § 48.23. Instead, default

proceedings and the rules of civil procedure apply, "except

where different procedure is prescribed by statute or rule."

Wis. Stat. § 801.01.

III. DEFAULT JUDGMENT POSTURE, NOT WAIVER OF COUNSEL.

¶53 Courts can enter a default judgment sanction for a

variety of reasons, such as in this case, for violating the

court's scheduling order requiring R.A.M.'s appearance.11 See

Evelyn C.R., 246 Wis. 2d 1, ¶17 ("[A] circuit court has both

inherent authority and statutory authority . . . to sanction

11 Wisconsin Stat. § 806.02, "Default judgment," provides, "A default judgment may be rendered against any party who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof." Wis. Stat. § 806.02(5). See also Gaertner v. 880 Corp., 131 Wis. 2d 492, 494-95, 499, 504-06, 389 N.W.2d 59 (Ct. App. 1986) (affirming the circuit court's entry of default judgment against a party for failure to appear at a scheduling conference, but reversing as to damages requested as they were unsupported by the record); State v. L.M.-N., Nos. 2014AP2405 & 2014AP2406, ¶18, unpublished slip op. (Wis. Ct. App. Oct. 8, 2015) ("Our supreme court has concluded that circuit courts have the authority to sanction parties who do not comply with court orders, including by entering default judgments.").

15 No. 2023AP441.akz

parties for failing to obey court orders."). "The decision to

sanction a party is within the sound discretion of the circuit

court." Mabel K., 346 Wis. 2d 396, ¶99 (Ziegler, J.,

dissenting) (quoting Evelyn C.R., 246 Wis. 2d 1, ¶18). Of the

sanctions circuit courts can impose, "default judgment is the

ultimate sanction." Miller v. Hanover Ins. Co., 2010 WI 75,

¶31, 326 Wis. 2d 640, 785 N.W.2d 493 (quoting other sources).

Courts imposing this "ultimate sanction" of default must ensure

that it is "just." See Wis. Stat. § 804.12(2)(a)3. ("If a

party . . . fails to obey an order to provide or permit

discovery, . . . the court . . . may make such orders in regard

to the failure as are just, [including] rendering a judgment by

default against the disobedient party[.]"); Wis. Stat. § 805.03

("For failure . . . of any party . . . to obey any order of the

court, the court . . . 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)."). For a court to justly

sanction a parent with default, the court must first find the parent's conduct was "egregious[] or in bad faith." See Mable

K., 346 Wis. 2d 396, ¶69. "Failure to comply with a circuit

court scheduling order without a clear and justifiable excuse is

egregious conduct." Id., ¶100 (Ziegler, J., dissenting); see

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

299 Wis. 2d 81, 726 N.W.2d 898 (lead op.). Again, we owe

deference to the circuit court's exercise of discretion.

¶54 Default or finding of default is different than waiver of the right to counsel under Wis. Stat. § 48.23. Section

16 No. 2023AP441.akz

48.23(2)(b)3. is reflective of how important the right to

counsel is, and how the court must make certain findings before

presuming parents have waived their right to counsel. Here, the

court's findings were related to default by R.A.M. not appearing

as required pursuant to the court's scheduling order. Nothing

in the court's findings dealt with R.A.M. waiving the right to

counsel by conduct, as is discussed in § 48.23(2)(b)3. R.A.M.

was represented by counsel at disposition. The court permitted

R.A.M.'s counsel to continue her representation in R.A.M.'s

absence. The court definitely did not dismiss R.A.M.'s counsel.

So, even though R.A.M. was defaulted at grounds, she was still

actively represented by counsel at disposition. The court made

egregiousness and bad faith findings here pursuant to the court

entering a default judgment sanction against R.A.M. As a

result, the statutory two-day delay is not implicated.

¶55 The majority argues Wis. Stat. § 48.23(2)(b)3.'s two-

day waiting period is intended to be triggered by default.

Majority op., ¶14. But that understanding creates conflicting factual situations like R.A.M.'s, in which counsel could be

present and participating yet presumed waived.

¶56 Finally, the TPR statutes are not designed to reward a

party who may strategically decide to not appear because the

case is not going well for them. Quite obviously, if a case is

not going well, a party may not want to attend for any number of

reasons——such as not wanting to testify or not having to answer

for failing to comply with discovery requests. For any number of reasons, in a civil proceeding, a party may choose to have

17 No. 2023AP441.akz

their lawyer appear on their behalf instead to advocate for

them. That is typically allowable in most civil cases.

¶57 Here, the court ordered R.A.M.'s appearance. R.A.M.

violated that order. Violation of a court order is

sanctionable. The two-day waiting period is not implicated by

every default or sanction. I conclude that the record

demonstrates that the circuit court's findings did not presume a

waiver of the right to counsel and instead, the court's findings

related to plain old traditional default judgment and a sanction

for failing to comply with the court order. The two-day delay

before disposition has no bearing on this sanction.

¶58 I would also note that not all default sanctions will

implicate the waiver of counsel. TPR disposition time periods

are outlined in Wis. Stat. § 48.424(4), and a judge may proceed

immediately from receipt of a TPR after factfinding to hear

evidence and motions for disposition. It is only if counsel is

presumed waived by the parent egregiously violating an order to

appear without clear and justifiable cause that the court has to wait two days before holding a dispositional hearing. To

conclude otherwise would allow the tail to wag the dog: a

parent who wishes, for whatever reason, to cause additional

delay could simply choose to not show up to the remainder of the

hearing and thereby receive additional time they would not

otherwise have. But judges must be able to control their

calendars and courtrooms. Default judgment is a tool available

for judges to use in TPRs, and does not always extinguish the parent's right to counsel.

18 No. 2023AP441.akz

¶59 Here, the statutory two-day waiting period was not

automatically triggered, as the facts of the case, and the

findings supported in the record, clearly indicate that the

circuit court sanctioned R.A.M. with default for her violation

of the scheduling order. Default judgment is an appropriate

sanction for R.A.M.'s nonattendance. The court never made a

determination that R.A.M.'s still-present counsel was presumed

waived. Wisconsin Stat. § 48.23(2)(b)3. does not properly apply

to the facts of this case.

IV. CONCLUSION

¶60 The statutory scheme the majority employs is

inapplicable as counsel was not presumed waived. Wisconsin

Stat. § 48.23(2)(b)3. addresses a circuit court who makes an

egregiousness finding pursuant to a parent being presumed to

have waived counsel. Section 48.23(2)(b)3. does not apply to

situations such as the one here, where the circuit court made a

finding that R.A.M.'s conduct was "egregious and without

justifiable excuse" and entered default against her, even though R.A.M.'s counsel was still present, was still communicating with

her client, and was still able to represent R.A.M.'s interests

at the dispositional phase of the TPR trial. As the record

reflects, the circuit court did not make any findings of

egregiousness pursuant to an implied or express waiver of

counsel. Thus, while the majority may be right that the statute

itself is straightforward and unambiguous, majority op., ¶¶14-

15, and 17, it must be applied to the right context. This case does not present a waiver of counsel issue. The circuit court

19 No. 2023AP441.akz

was not statutorily bound to wait two days to proceed to

disposition.

¶61 Because the findings which the circuit court made in

this case met standard default judgment sanction posture, we

should be affirming that determination. The majority, as did

the court of appeals, applies the wrong statute to the facts of

this case: Wisconsin Stat. § 48.23(2)(b)3.'s two-day waiting

period does not apply to the default judgment finding the

circuit court made here.

¶62 For all the foregoing reasons, I respectfully dissent.

¶63 I am authorized to state that Justice BRIAN HAGEDORN

joins this dissent.

20 No. 2023AP441.akz