The SCOW docket: Court mandates adherance to 2-day rule in termination of parental rights case

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes (with an exception in this case) from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. In this case, emphasis included in the opinion has been underlined.

Karofsky

The case: State of Wisconsin vs. R.A.M.
 
Majority:  Justice Jill J. Karofsky (15 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Frank Dallet, and Janet C. Protasiewicz
 
Dissent: Chief Justice Annette Ziegler (10 pages), joined by Justice Brain Hagedorn
 
The upshot

The circuit court violated (Wisconsin statutory law), 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 entitled to a new dispositional hearing.

Background

R.A.M. is the parent of P.M., a son born in February 2015. 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 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.

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 Wisconsin statutes and that R.A.M. had failed to assume parental responsibility under the statutes. 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 the court set three more dates in July (including July 5, 2022).

(In a footnote:)
Termination of parental rights cases proceed in two 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 (Wisconsin statutes) 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. 

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 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.

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.

The court immediately moved to the dispositional phase and concluded the dispositional hearing on that same day without R.A.M. present. 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. appealed, and the court of appeals reversed the order terminating her parental rights. . . .  Subsequently, the guardian ad litem filed a petition for review, which this court granted.

The guts

To resolve this case we must interpret the applicable statute, 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 by Karofsky.)

The crux of this case is the last sentence of the statute (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.

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The petitioners . . . 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.

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Because the conditions that trigger the two-day waiting period are plain and unambiguous, we will not use (the statute'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." Therefore, the title of the statute does not alter our understanding of the statute, or compel us to add any additional conditions for the two-day waiting period to occur.

Similarly, when the meaning of a statute is plain, we do not consult legislative history to ascertain its meaning. 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.

To summarize, (the statute) 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.
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Having determined that the circuit court violated the statute 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. . . . 

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." Interpreting a similar "may not" structure, the court of appeals wrote in a prior case: "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." And here the circuit court clearly failed to follow the statute's mandate.

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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. 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." The requirement also serves the underlying purpose of chapter 48 of the Wisconsin Statutes: "the best interests of the child . . . shall always be of paramount consideration." 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 . . . .
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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 unjustifiable. As a result, we hold that the circuit court here lacked competency to proceed with the dispositional hearing.

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Ziegler

​The dissent
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The purpose of the TPR (termination of parental rights) statutes is to provide predictability, permanency, and stability for the child. In pursuit of this purpose, "[t]he courts 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." 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.

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The majority errs in applying the timing requirements of the applicable statute to the facts and procedural posture of this case. The statute addresses the right to counsel and waiver of counsel, not default. While the title of a statute is not dispositive, 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 R.A.M.'s TPR trial. Counsel was never even presumed waived. The statute the majority relies upon is inapplicable here.

The majority misapplies the second subsection of the statute 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, 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 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.
                                                   
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The majority ignores the statute's contextual clues to hyper-fixate on the last sentence of the statute, 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. So, while "[c]ontext is important to meaning," 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 . . . ." 

The language of this entire statute is plain: This statute deals with waiver of counsel. The statute 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. This understanding of the statute is further reflected in the subsection which immediately follows the sentence the majority focuses on, which again deals with waiver of counsel. 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.

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. . . 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. There was no waiver of counsel connected to these egregiousness findings. R.A.M.'s counsel was still present and representing her.

Given this context, we are not in a waiver of counsel posture as required under the statute. Instead, default proceedings and the rules of civil procedure apply, "except where different procedure is prescribed by statute or rule."

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Default or finding of default is different than waiver of the right to counsel . . . . The statute 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 the pertinent statute. 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.

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I would also note that not all default sanctions will implicate the waiver of counsel. TPR disposition time periods are outlined in a statute, 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.

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. The statute at issue does not properly apply to the facts of this case.

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