In May 2024 in this blog, ¹ my co-author Jenni Spies Karas and I warned that practitioners and judges should be mindful to cite the authority by which they are requesting or entering default judgment, pending the outcome of the Wisconsin Supreme Court case State v. R.A.M.

That caution has become a reality.

The Supreme Court in June 2024 released its decision finding that any reference to “egregiousness” triggers the waiver of counsel statute in Wis. Stat. chapter 48. Specifically, strict adherence to isolated language in a statute has been elevated above the right to a counsel for parents in termination of parental rights (TPR) cases.

In State v. R.A.M., ² the Court interpreted the application of Wis. Stat. section 48.23(2)(b)3 to mandate the waiver of counsel whenever a parent is defaulted for failure to obey a court order – such as an order to appear during the proceedings – if that failure is categorized as “egregious and without justifiable excuse.”

The Case

The facts of the case involved a mother who had been ordered to appear in person, who then failed to appear for one court date in the middle of a court trial. The mother reported that she was clearing a warrant, but the court found she was manipulating the court after she reported, for several hours on end, that she was on her way to the police department. Two weeks later, the warrant remained active.

The trial court did not make any explicit finding of waiver of counsel on the record, nor did the court discharge the mother’s counsel. Instead, the trial court found that the mother’s missed appearance was egregious, in bad faith, and without justifiable excuse, and proceeded to disposition, allowing the mother’s counsel to participate.

The Supreme Court was tasked with interpreting section 48.23(2)(b)3, 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 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.

R.A.M.’s counsel argued that the court issued restrictions over R.A.M.’s counsel after entering the default judgment for failure to appear, which was tantamount to a deprivation of counsel, making the default judgement and automatic waiver of counsel under Wis. Stat. section 48.23.

As a result, R.A.M. argued that the trial court lost competency when it immediately proceeded to disposition. The State and guardian ad litem argued that the statute led to absurd results if it applied without an explicit finding of waiver of counsel or discharge of counsel on the record, because an “egregious” finding is required for all default judgment and sanctions, including those provided for by general civil procedure.

Ultimately, the issue turned on the distinction between default judgment for failure to follow court orders pursuant to a court’s inherent and statutory authority under general civil procedure, versus a parent’s refusal to communicate or cooperate with the court process, thereby demonstrating a waiver of their right to counsel by their conduct.

The majority opinion held that section 48.23 applies any time a court defaults a parent for egregious conduct. Specifically, the majority opinion held that:

When (as here) a parent fails to 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. ³

The dissenting opinion cautioned that the majority opinion “ignores” the statute’s “contextual clues to hyper-fixate on the last sentence of the statute.” Instead, the dissenting opinion found that section 48.23 was not applicable to the facts of the case at all.

Given that a default judgment finding under general civil procedure requires a finding that the offending behavior was egregious and without justifiable excuse, the dissent recognized that the majority opinion serves to force the waiver the counsel every time a court defaults a parent for any failure to obey a court order. Specifically, the dissent notes:

[T]he 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. ⁴

The fallout from this opinion is yet to be seen.

Overruling State v. Shirley E.

It seems, on its face, that State v. R.A.M. serves to overrule State v. Shirley E., at least in part, though it does not state as much in the opinion. In Shirley E., the Supreme Court found that a parent’s right to counsel survives default judgment, and failure to allow participation by the parent’s counsel is structural error. ⁵

While section 48.23 was amended after Shirley E.’s release, it did not overrule it. Seemingly, R.A.M. did, when it indicated that a parent’s right to counsel is automatically waived upon a default judgment because “[t]he 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.” ⁶ If the two-day waiting period always applies when a default judgment is rendered, then waiver of counsel always applies as well.

The Practical Effect

Trial courts must be careful to be very specific when making default judgment findings – whether those defaults are made pursuant to general civil procedure for failure to join issue, or a sanction for failure to obey a court order, or whether the court intends to waive the right to counsel. It seems the only way to preserve a parent’s right to counsel is to expressly disavow the application of section 48.23.

Conversely, if a court does intend to waive the parent’s right to counsel, it must adjourn the dispositional hearing for at least two days. In larger counties, practitioners know that two days is not two days on a court’s calendar, especially when there are several attorneys on a case. Accordingly, in Milwaukee County, where waiver of counsel is intended, often practitioners are requesting – and courts are granting – discharge of counsel under Wis. Stat. section 48.23(4m) where the statute and R.A.M. are in play.

Conclusion

The Supreme Court has interpreted Wis. Stat. section 48.23(2)(b)3 to apply every time the word “egregious” is uttered in a courtroom in connection with failure to obey a court order. Trial courts should be careful to disavow the application of this section where not intended.

However, where it is intended, courts should consider discharging counsel and moving to disposition as quickly as possible on the court’s calendar beyond the two-day adjournment requirement to achieve permanency for the child.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Courtney L.A. Roelandts and Jenni Spies Karas, “‘Egregious’ and Accidental Waiver of Counsel in TPR Cases,” Children & the Law Section Blog, May 21, 2024.

² State v. R.A.M., 2024 WI 26.

³ State v. R.A.M., 2024 WI 26, at 14.

⁴ State v. R.A.M., 2024 WI 26, at 57.

⁵ State v. Shirley E., 2006 WI 129, at 60-62.

⁶ State v. R.A.M., 2024 WI 26, at 14