                                                                    2013 WI 28

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2011AP825 & 2011AP826
COMPLETE TITLE:
                        In re the termination of parental rights to
                        Isaiah H., a person under the age of 18:

                        Dane County Department of Human Services,
                                  Petitioner-Respondent,
                             v.
                        Mable K.,
                                  Respondent-Appellant-Petitioner,
                        Lee H.,
                                  Respondent.

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

                        Dane County Department of Human Services,
                                   Petitioner-Respondent,
                             v.
                        Mable K.,
                                   Respondent-Appellant-Petitioner,
                        Wesley J.,
                                   Respondent.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                                           (No Cite)

OPINION FILED:          March 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 7, 2012

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Amy R. Smith

JUSTICES:
   CONCURRED:
   DISSENTED:           Ziegler, Roggensack, Gableman, JJJ., dissent.
                        (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
        For the respondent-appellant-petitioner, there were briefs
filed    by     Brian   C.   Findley,   Darlington,   and   oral   argument   by
Brian C. Findley.
     For the petitioner-respondent, there was a brief filed by
Gary Rehfeldt, assistant Dane County corporation counsel, and
oral argument by Gary Rehfeldt.
     A guardian ad litem brief was filed by Ginger L. Murray and
Lawton & Cates, S.C., Madison.




                                  2
                                                                 2013 WI 28
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.    2011AP825 & 2011AP826
(L.C. No.   2010TP32 & 2010TP33)

STATE OF WISCONSIN                     :            IN SUPREME COURT

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



Dane County Department of Human Services,

            Petitioner-Respondent,
                                                              FILED
      v.                                                 MAR 29, 2013
Mable K.,                                                   Diane M. Fremgen
                                                         Clerk of Supreme Court
            Respondent-Appellant-Petitioner,

Lee H.,

            Respondent.




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



Dane County Department of Human Services,

            Petitioner-Respondent,

      v.

Mable K.,

            Respondent-Appellant-Petitioner,
Wesley J.,

               Respondent.




        REVIEW of a decision of the Court of Appeals.                             Reversed and

cause remanded.



        ¶1     ANN     WALSH     BRADLEY,     J.        The     petitioner,          Mable    K.,

seeks review of an order of the court of appeals dismissing her

appeals       in    two    consolidated       termination           of      parental      rights

proceedings.1          She contends that the circuit court erroneously

exercised       its    discretion      when       it    granted       a    default      judgment

finding that grounds existed to terminate her parental rights,

after        barring      her   attorney      from          offering       further      evidence

tending        to      refute      the       grounds          for         the     termination.

Additionally, she argues that the circuit court erred when it

granted the default judgment prematurely.

      ¶2       Mable K. further argues that the remedy provided by

the circuit court to address its errors is fundamentally unfair.

The   circuit         court's    remedy      was       to    return       Mable    K.    to   the

procedural         posture      when   the    error         occurred       and    conduct     the


        1
       Dane Cnty. Dep't of Human Servs. v. Mable K., Case Nos.
2011AP825, 2011AP826, unpublished slip op. (Wis. Ct. App., Jan.
11, 2012), dismissing Mable K.'s appeals after an order of the
circuit court for Dane County, Amy Smith, J. presiding, vacated
its previous order terminating her parental rights.



                                              2
                                                               No.     2011AP825 & 2011AP826



remainder of the fact-finding hearing before the circuit court,

not before a jury.

     ¶3      We conclude, and the circuit court has acknowledged,

that it erroneously exercised its discretion when it entered a

default judgment finding that grounds existed to terminate Mable

K.'s parental rights after barring her attorney from offering

additional evidence.          It also erred when it granted the default

judgment   before         taking    evidence         sufficient       to     establish    the

grounds alleged in the amended petitions.                            We further conclude

that the circuit court's remedy for correcting the errors is

fundamentally unfair under the facts of this case.

     ¶4      Accordingly,          we    reverse      and     remand       to   the   circuit

court for a new fact-finding hearing to be heard by a jury if

Mable K. timely demands one.                    On remand, the new fact-finding

hearing is to be held at the earliest reasonable opportunity.

                                                I

     ¶5      Dane     County            filed       amended     petitions          for    the

termination    of     Mable    K.'s        parental      rights       of     her   children,
Isaiah H. and May K.           Dane County also sought to terminate the

parental rights of the fathers of the children in the amended
petitions.          The     amended       petitions         allege      as      grounds   for

termination of Mable K.'s parental rights a continuing need of
protection or services under Wis. Stat. § 48.415(2) (2009-10)2

and abandonment under Wis. Stat. § 48.415(1).


     2
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                                3
                                                     No.    2011AP825 & 2011AP826



      ¶6    Before    the   fact-finding       hearing,    the    circuit    court

ordered Mable K. to appear in person at all proceedings.3                       She

was represented by an attorney, Yolanda Lehner, at the fact-

finding hearing which was being tried by a jury.                   On September

14, 2010, the second day of the fact-finding hearing, Mable K.

failed to personally appear at 9:00 a.m. when the hearing was

set   to   resume.4     However,    Attorney      Lehner    was    present      and

appeared on her behalf.

      ¶7    When   Mable    K.   failed   to    personally       appear    at   the

appointed time, the circuit court asked Attorney Lehner about

Mable K.'s absence.         Attorney Lehner stated that Mable K. had

called as Attorney Lehner was arriving at the courthouse that

morning.    Mable K. told Attorney Lehner that she "wasn't feeling

good" and that the hearing was extremely stressful.                       She also

told Attorney Lehner that she didn't think she could come to

court.

      3
       Termination of parental rights proceedings involve a two-
step procedure. State v. Shirley E., 2006 WI 129, ¶26, 298 Wis.
2d 1, 724 N.W.2d 623. The first step is the fact-finding phase,
which consists of an evidentiary hearing to determine whether
adequate grounds exist for the termination of parental rights.
Wis. Stat. § 48.424; Shirley E., 298 Wis. 2d 1, ¶27. The second
step   is  the   dispositional phase, which     consists  of an
evidentiary hearing in which the circuit court determines
whether termination of parental rights is in the child's best
interests. See Wis. Stat. § 48.427; Shirley E., 298 Wis. 2d 1,
¶28.
      4
       Mable K. was present for the first day of the fact-finding
hearing.   Additionally, there were eight pre-trial proceedings
held by the circuit court prior to the fact-finding hearing and
there is no indication that Mable K. failed to appear on time
for any of those proceedings.

                                      4
                                                        No.   2011AP825 & 2011AP826



       ¶8     Dane County moved for a default judgment.                  Attorney

Lehner      requested   another   opportunity      to    speak   with   Mable    K.

about coming to court.         Instead of granting a default judgment

at that time, the circuit court recessed for five minutes in

order to allow Attorney Lehner an opportunity to again contact

Mable K.

       ¶9     When Attorney Lehner returned to court, she explained

that she had spoken with Mable K. via telephone.                   Mable K. told

Attorney Lehner that she was going to ride her bicycle to court

and that she would be there in "about half an hour."

       ¶10    Attorney Lehner asked the circuit court to wait until

"10 to 10," or 9:50 a.m., to see if Mable K. arrived.                           The

circuit      court   agreed   and   took    Dane    County's       motion   under

advisement to see whether Mable K. arrived in court later in the

day.     The hearing before the jury resumed, and testimony was

presented addressing the petitions against the fathers.

       ¶11    At approximately 10:20 a.m., outside the presence of

the jury, the circuit court again took up the matter of Mable K.
being absent from court.          Dane County renewed its motion for a

default judgment.        However, the attorney for Dane County noted
that more evidence would be required to support the abandonment

ground regarding both children before a default judgment could
be entered.      He expected a witness who could testify about that

issue to arrive at 10:30 a.m.              The circuit court acknowledged
that it needed to hear additional testimony from Dane County's

witness to establish the ground of abandonment before granting


                                      5
                                                               No.    2011AP825 & 2011AP826



the motion for a default judgment finding that grounds existed

to terminate Mable K.'s parental rights.5

      ¶12     In opposition to the renewed motion, Attorney Lehner

argued      that    on    the    abandonment          issue,    she     had    "a     lot    of

evidence."         The evidence was, in Attorney Lehner's estimation,

enough      to     make    it    "difficult           for     the     County     to     prove

abandonment."

      ¶13    Attorney Lehner asked whether she would be allowed to

adduce that evidence, but the circuit court determined that she

would not be allowed to do so.                    Instead she would be allowed

only to cross-examine Dane County's sole witness in response to

the direct evidence             introduced       by    Dane    County.         The    circuit

court then heard testimony from the witness and Attorney Lehner

cross-examined him.

      ¶14    Following       the testimony            from    Dane    County's       witness,

the   circuit        court      "found   by       default"           both     grounds       for

termination.        After making that determination, the circuit court

found Mable K. unfit.            There was no reference at the hearing to
Wis. Stat. § 805.03, a statute that allows the circuit court to

enter a sanction for the violation of a court order.                                 In fact,


      5
       This court determined in Evelyn C.R. v. Tykila S., 2001 WI
110, ¶¶16-19, 246 Wis. 2d 1, 629 N.W.2d 768, that a circuit
court must first take evidence sufficient to support a finding
by clear and convincing evidence that the ground or grounds
alleged in the petition were proven before granting a default
judgment on the grounds at issue.     The circuit court did not
reference Evelyn C.R. directly, but in acknowledging that it
needed to hear additional testimony, it appears to have been
aware of that requirement.

                                             6
                                                              No.    2011AP825 & 2011AP826



the words "sanction" or "forfeiture" were not employed as part

of the analysis (for further discussion, see infra ¶¶67-71).

        ¶15    Mable K. arrived in court approximately ten minutes

later at 10:45 a.m.            Outside the presence of the jury Attorney

Lehner requested that the circuit court reconsider its previous

entry    of    a default judgment finding                 that      grounds   existed    to

terminate Mable K.'s parental rights.                     The circuit court invited

Mable     K.    to    testify     about       why       the   circuit     court     should

reconsider the default judgment.

       ¶16     Mable K. testified that she was "real kind of sick"

from the previous day's "procedure."                      The proceedings from the

previous day "really kind of hurt" her and she testified that

she arrived late because "[she] was just tired."                                On cross-

examination,          Dane     County     introduced           deposition        testimony

regarding inconsistent statements made by Mable K. about her

marital status in previous termination proceedings.                             On further

questioning      from    the    circuit       court,      Mable     K.   testified     that

after the second phone call, she said she "had to get me some

breakfast then I will be coming."
       ¶17     After Mable K. finished testifying, the circuit court

considered whether it should vacate the default judgment.                               The
circuit       court   questioned     Mable        K.'s    credibility,        citing    the

inconsistent statements Mable K. had made in prior depositions
that were introduced during cross-examination by Dane County.

The circuit court also discussed the morning's events and Mable

K.'s      testimony,         where      Mable       K.        had     offered      several

"inconsistent"          reasons         for       not     appearing        in      person.
                                              7
                                                       No.     2011AP825 & 2011AP826



Accordingly,   the    circuit    court      determined       that    Mable    K.   had

introduced   insufficient   proof       to    support    a     finding   that      the

default    judgment     should     be        vacated         under    Wis.      Stat.

§ 806.07(1)(a), which allows relief from a judgment on grounds

of mistake or excusable neglect.6

     ¶18   The circuit court then dismissed Mable K. and Attorney

Lehner from the remainder of the fact-finding hearing.                       When the

jury was brought back into court, it was instructed that Mable

K. was no longer involved in the cases and that the claims

against her had been resolved.               The hearing before the jury

continued, addressing the petitions against the fathers.

     6
       The record from the hearing on the motion to vacate the
default judgment reflects that the motion was advanced and
decided pursuant to Wis. Stat. § 806.07(1)(a).      The record
reflects the following:

     I infer from the information that [Mable K.] has
     provided and the comments made by Ms. Lehner that we
     are, that [Mable K.] is seeking the Court to vacate
     the default judgment based on mistake or excusable
     neglect or something of that nature. . . .

     I also would note that I do not believe that the
     testimony of [Mable K.], even taken in the light most
     favorable   to   [her],   could  possibly  constitute
     excusable neglect. [Mable K.] has indicated that for
     –- on the record as to a number of different possible
     excuses for her failure to appear here today.    I do
     not believe that any of them constitute mistake or
     excusable neglect as those terms are defined in
     Section 806.07(1)(a). . . .

     I also will find that the information that I have is
     insufficient to make a finding that judgment or order
     of default should be relieved under 806.07 and I,
     therefore, deny the motion to relieve [Mable K.] from
     default judgment. I've ruled in that regard.

                                        8
                                                              No.      2011AP825 & 2011AP826



       ¶19     Before      the     dispositional          hearing,      Joyce        Brown,     a

social worker with the Dane County Department of Human Services,

filed a court report that recommended terminating Mable K.'s

parental       rights.          According      to    the    psychiatric         evaluations

referenced        in   that      court   report,      Mable      K.    has    "intellectual

deficits" with a performance IQ of 60, and a full scale IQ of

54.    The court report indicates that an IQ of 54 is "considered

in the extremely low range."

       ¶20     The     circuit     court      held    a    dispositional        hearing        on

January      3,    2011.         Mable   K.    personally        appeared       along       with

Attorney Lehner.               The circuit court heard testimony from Joyce

Brown regarding the best interests of the children.                                    At the

conclusion        of     the    dispositional        hearing,         the    circuit     court

entered an order terminating Mable K.'s parental rights.

       ¶21     Mable K. appealed following the dispositional hearing.

Retaining jurisdiction, the court of appeals remanded the cases

back to the circuit court and ordered the circuit court to hear

and decide postdisposition motions.
       ¶22     At a postdisposition motion hearing on remand, Mable

K.    argued      that    the     circuit     court       erroneously        exercised        its
discretion        by     granting    and      refusing      to      vacate     the     default

judgment finding that grounds existed to terminate her parental
rights.        She     contended     that      the    appropriate           remedy    for     the

erroneous exercise of discretion was a new fact-finding hearing.
       ¶23     Attorney Lehner offered testimony about the evidence

she had intended to introduce at the fact-finding hearing.                                    She

testified that she did not think that Dane County could prove
                                               9
                                                                 No.    2011AP825 & 2011AP826



the abandonment ground.                   The amended petitions relating to both

children alleged that Mable K. failed to visit or communicate

with the children during a five-month period between December

17,   2009      and       May    27,    2010.         The    amended    petitions         further

alleged that there were two e-mail communications from Mable K.

to    the       children's         foster        parent,       but     that        both    e-mail

communications occurred more than three months after Mable K.'s

last visit with the children on December 17, 2009.

        ¶24     To       rebut    the     abandonment         ground,        Attorney      Lehner

intended        to       introduce      e-mail    correspondence             and    records     of

contacts between Mable K., the social workers involved in her

case,     and      the     children's        foster         parent.      Contrary         to   the

allegations          in    the   amended     petitions,         these    contacts         suggest

that Mable K. contacted the children's foster parent and social

workers       on     a    number     of    occasions        during     the    period      of   the

alleged abandonment.

        ¶25    The e-mail communications that Mable K. sent directly

to the children's foster parent during the period of alleged
abandonment were not two in number as stated in the amended

petitions, but rather there were seven.                              Also contrary to the
allegations of the amended petitions, the record indicates that

there     were       e-mails       sent     during——not         after——the          three-month
period following Mable K.'s last visit with the children.                                      The

e-mails which Attorney Lehner intended to introduce were sent on
January 21, 2010, March 1, 2010, March 31, 2010, April 22, 2010,

April 29, 2010, May 5, 2010, and May 13, 2010.                               In those e-mail

communications, Mable K. asked on several occasions about the
                                                 10
                                                             No.     2011AP825 & 2011AP826



children's     lives,      their       experiences      in       school,     how    big    the

children were getting, and whether the foster parent could share

any pictures of the children.

       ¶26     To    further      rebut     the    abandonment        ground,       Attorney

Lehner intended to introduce e-mail correspondence and records

of contacts between Mable K. and social workers involved in her

case during the alleged period of abandonment.                         One such record

notes that Mable K. left a voice message with a social worker on

January 7, 2010, cancelling a contact scheduled for that date.

Mable K. sent an e-mail to the same social worker on March 1,

2010 saying she no longer had a telephone and apologizing for

her lack of response.             Another record from March 10, 2010 notes

that Mable K. called a social worker and asked whether she could

"see    her    kids,"      but    there      is    no   indication         such     a    visit

occurred.          An additional e-mail from a social worker sent on

March 16, 2010 indicates that the social worker spoke on the

telephone with Mable K. the previous day and that Mable K. said

she "expect[ed] to get the kids back as she will have housing on
the South side next month."

       ¶27    Attorney Lehner stated she intended to introduce the
evidence      to     rebut       the    abandonment         ground     through          cross-

examination        of    "the    social      workers"       or     through    Mable       K.'s
testimony     directly.           Nearly     all   of   the       e-mails    were       either

directed      to    or   copied        to   the    social     worker,       Joyce       Brown.
Attorney Lehner had previously listed Joyce Brown on her amended

witness list before the fact-finding hearing.


                                             11
                                                              No.    2011AP825 & 2011AP826



      ¶28    Attorney       Lehner    further          testified          that     she        had

intended to introduce evidence contesting the continuing need of

protection or services ground.              She thought that she could "make

a case that [Mable K.] would meet the conditions [of the child

in   need   of    protection    or    services         order]       in    the     next    nine

months."         Attorney    Lehner    testified            that    Mable    K.     "had      an

apartment lined up" and that the apartment evidence would make

it likely that Mable K. would meet the conditions.                               In Attorney

Lehner's opinion, the fact that Mable K. did not have a place to

live "seemed to be the mainstay with getting her kids back."

      ¶29    Attorney    Lehner      thought      that       she    had    an     additional

defense to this ground, that is a "strong argument that the

Department had not made reasonable efforts."                             She had intended

to develop the argument that "it was almost set up so that

[Mable K.] would fail...to meet the conditions she needed for

return" by cross-examining Joyce Brown.                       Additionally, Attorney

Lehner intended for Mable K. to testify regarding both of the

anticipated defenses to the continuing need of protection or
services ground.

      ¶30    In     a   later    oral       decision          following          the     post-
disposition motion hearing, the circuit court determined that it

erroneously       deprived    Mable    K.    of       her    statutory      right        to    an
attorney provided under Wis. Stat. § 48.23(2).                            Citing State v.

Shirley     E., 2006    WI    129,    298    Wis. 2d 1,            724   N.W.2d 623,          the

circuit     court   acknowledged      that       it    had    erred       when    it   barred

Attorney Lehner from adducing evidence tending to refute the

grounds alleged in the amended petitions.                           Dane County argued
                                            12
                                                        No.    2011AP825 & 2011AP826



that there were no witnesses to present when Mable K. was late

on the second day of the fact-finding hearing, but the circuit

court rejected that argument.7           It concluded that Attorney Lehner

"had evidence beyond [Mable K.]" and had "other witnesses on her

witnesses list," stating:

     I really think that [Mable K.] should have had that
     opportunity to bring in these witnesses and, frankly,
     I don't know exactly what they would say but she had a
     right to at least present it.
Accordingly,     the    circuit      court    vacated    its    previous    orders

terminating Mable K.'s parental rights.

     ¶31   The    circuit      court    determined      that    the   appropriate

remedy for the erroneous exercise of discretion was to return

Mable K. to the procedural posture when the error occurred. That

procedural posture was after Dane County had moved for a default

judgment and its abandonment witness had testified outside the

presence   of    the   jury,   but     before   the   circuit     court   actually

found by default that grounds existed to terminate Mable K.'s




     7
       The dissent makes the same argument that there were no
witnesses to present but ignores that the circuit court soundly
rejected that argument. Dissent, ¶110 n.11.

     Additionally, Attorney Lehner acknowledged that although
she could not call Mable K. if Mable K. was not present for the
second day of the fact-finding hearing, she "wouldn't have put
[her] case on probably until the next day anyway." Contrary to
the arguments of the dissent, the record indicates that not only
were there witnesses to present, but that the parties had
already scheduled them to testify.

                                         13
                                                       No.    2011AP825 & 2011AP826



parental rights and found Mable K. unfit.8                   Under the circuit

court's remedy, any additional evidence Mable K. could offer

would be to the court, not to a jury.

        ¶32      The cases returned to the court of appeals after the

postdisposition motion hearing.                While the cases were pending

before the court of appeals, Dane County filed a motion for

reconsideration with the circuit court concerning its findings

at the postdisposition motion hearing.

        ¶33      The circuit court issued a written "response" to the

motion for reconsideration, indicating that it would be inclined

to amend portions of its oral decision on remand if the court of

appeals       allowed   it    to   do   so.     However,     the   circuit   court

concluded that it lacked the authority to act while the cases

were pending before the court of appeals.

        ¶34      After the circuit court issued its written "response,"

the court of appeals issued an order remanding the cases to the

circuit court in order to address Dane County's motion.                         The

court       of   appeals     reasoned   that   there   was    little    point   in
reviewing a circuit court order that the circuit court itself no

longer believed was the correct outcome.




        8
       This case presents legal questions for our determination.
In an apparent attempt to obfuscate the legal issues, much of
the dissent's "family background" discussion seemingly is
designed to malign Mable K.'s fitness as a parent——which is not
an issue before us.   The dissent seems to be advancing that we
should somehow evaluate the law differently because of Mable
K.'s family background.

                                          14
                                                             No.    2011AP825 & 2011AP826



        ¶35   On    remand    to     address      Dane   County's        reconsideration

motion, the circuit court reaffirmed its earlier oral findings

in a written decision.               The circuit court concluded that the

order     terminating        Mable    K.'s        parental     rights     would    remain

vacated, "with the expectation that this court will decide at an

evidentiary         hearing      whether          grounds     exist       to    establish

termination        of   [Mable     K.'s]   parental         rights,"     at    which   time

Mable K. could present evidence "contrary to default."

      ¶36     Following the circuit               court's    written      decision,      the

cases returned to the court of appeals.                       In an order issued on

December 21, 2011, the court of appeals sua sponte questioned

what to do with the appeals,                   tentatively         concluding     that   no

appeal existed as of right and that it would not be inclined to

take up the appeals on a discretionary basis.                              However, the

court of appeals invited additional briefing on the matter.

      ¶37     After additional briefing, the court of appeals issued

an order on January 11, 2012 dismissing the appeals.                            The court

of appeals relied on the analysis contained in its December 21,
2011 order.

                                             II
      ¶38     In these cases, we are called upon to examine whether

the     circuit     court     erroneously          exercised       its   discretion       in




                                             15
                                                                   No.    2011AP825 & 2011AP826



entering a default judgment against Mable K.9                                  We are asked to

first        determine      whether         it    was    an    erroneous           exercise     of

discretion         to    grant    a     default       judgment      finding      that     grounds

existed       to    terminate          Mable     K.'s    parental         rights     after     the

circuit       court      barred       Attorney     Lehner      from       adducing       evidence

tending to refute the allegations in the amended petitions.                                    We

are    further          called    to    determine        whether         the    circuit    court

erroneously         exercised         its   discretion        in    granting       the    default

judgment before establishing the grounds alleged in the amended

petitions.

       ¶39        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.                                   Schneller v.


        9
        Mable K. additionally argues that the circuit court
erroneously exercised its discretion in granting a default
judgment because her conduct was not egregious or in bad faith
and because Wis. Stat. § 806.07(1)(h), which allows relief from
a judgment for "[a]ny other reasons justifying relief from the
operation of the judgment," required the circuit court to vacate
the default judgment.     Because we conclude that entering a
default judgment was an erroneous exercise of discretion on
other grounds, we need not address whether granting a default
judgment was an erroneous exercise of discretion for those
reasons.

     In accepting the petition for review, we ordered the
parties to brief the issue of whether the circuit court's
decision to vacate its previous order terminating Mable K.'s
parental rights constitutes a final order for the purposes of
appeal.    However, we likewise need not decide that issue.
Having accepted the petition for review, determining the exact
implications of the circuit court's actions on the status of
these appeals is not necessary to the resolution of this case.

                                                 16
                                                                No.        2011AP825 & 2011AP826



St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 306, 470 N.W.2d 873

(1991).          Ultimately        our     determination                 rests     here    on    an

examination          of    whether       the    circuit         court           applied     proper

standards       of   law    when    it    granted         the   default          judgment.        We

review       questions      of     law    independent           of        the     determinations

rendered by the circuit court and the court of appeals.

       ¶40    If     we    determine     that       the    circuit         court     erroneously

exercised its discretion in granting a default judgment finding

that grounds existed to terminate Mable K.'s parental rights, we

must     then      examine       whether       the     circuit           court's        remedy   is

fundamentally fair under these facts.                       See Sheboygan Cnty. Dep't
of Health & Human Servs. v. Julie A.B., 2002 WI 95, ¶22, 255

Wis.   2d     170,    648    N.W.2d      402.         Whether        a    circuit       court    has

provided a parent in a termination of parental rights proceeding

fundamentally fair procedures also presents a question of law

that we review independent of the determinations of the circuit

court and court of appeals.                     See Monroe Cnty. Dep't of Human

Servs. v. Kelli B., 2004 WI 48, ¶¶16, 27, 271 Wis. 2d 51, 678

N.W.2d 831.

       ¶41    We address each issue in turn.

                                               III

       ¶42    We      first       consider           whether         the         circuit     court

erroneously exercised its discretion when it entered a default

judgment finding that grounds existed to terminate Mable K.'s

parental      rights.         Specifically,           Mable     K.        contends       that    the

circuit court erroneously exercised its discretion in granting

the default judgment after it                    deprived        her       of     her    statutory
                                               17
                                                        No.    2011AP825 & 2011AP826



right to an attorney under Wis. Stat. § 48.23(2).10                   She further

contends     that    the    circuit      court    erroneously      exercised    its

discretion when it granted the default judgment before taking

evidence    sufficient       to   establish      the   grounds   alleged   in   the

amended petitions.

     ¶43     The circuit court acknowledged that it erred when it

barred     Mable    K.   from     presenting      further     evidence.     Citing

Shirley E., the circuit court determined that Attorney Lehner

should have been allowed to present evidence tending to refute

the allegations in the amended petitions to terminate Mable K.'s

parental rights.         Likewise, Dane County agreed at oral argument

before this court that the circuit court committed error in not

allowing    Attorney       Lehner   to   adduce    additional     evidence.      We

begin our analysis by examining Shirley E.




     10
          Wisconsin Stat. § 48.23(2) provides the following:

    (2) Whenever a child is the subject of a proceeding
    involving a contested adoption or the involuntary
    termination of parental rights, any parent under 18
    years of age who appears before the court shall be
    represented by counsel; but no such parent may waive
    counsel. Except as provided in sub. (2g), a minor
    parent petitioning for the voluntary termination of
    parental rights shall be represented by a guardian ad
    litem. If a proceeding involves a contested adoption
    or the involuntary termination of parental rights, any
    parent 18 years old or older who appears before the
    court shall be represented by counsel; but the parent
    may waive counsel provided the court is satisfied such
    waiver is knowingly and voluntarily made.



                                         18
                                                            No.     2011AP825 & 2011AP826



     ¶44    The Shirley E. court addressed the question of whether

a circuit court may deny a parent the statutory right to an

attorney when the parent appeared in the proceeding but failed

to personally attend the hearing in contravention of a court

order.     298 Wis. 2d 1, ¶2.             Shirley E., a parent, failed to

personally attend an initial plea hearing in a termination of

parental    rights       proceeding.       Id.,      ¶11.         The    circuit         court

rescheduled the hearing so the State could obtain service on

Shirley E. and arrange for the appointment of an attorney.                               Id.
     ¶45    At     the   rescheduled      hearing,      Shirley          E.'s    recently-

appointed attorney appeared in person, but Shirley E. did not.

Id., ¶12.        The circuit court allowed Shirley E. to appear by

telephone at her attorney's request.                   Id.        The State asked the

circuit court to enter a default judgment against Shirley E.,

but the circuit court instead ordered Shirley E. to appear in

person at the next hearing and warned her that if she did not

appear    personally,      the     circuit     court    would       enter       a   default

judgment    against      her.      Id.       The    hearing        was    adjourned        and

rescheduled again.         Id.

     ¶46    Shirley       E.     failed   to       personally           appear      at     the

rescheduled hearing.             Id., ¶13.         The circuit court entered a

default judgment as a sanction for her failure to obey the court

order that Shirley E. appear in person.                           Id.      However, the

circuit    court    indicated that it          would     entertain         a     motion        to

vacate the default judgment if Shirley E. appeared in person,

and again adjourned the matter.              Id., ¶15.


                                          19
                                                    No.    2011AP825 & 2011AP826



      ¶47    When Shirley E. failed to appear personally at the

next hearing, the circuit court dismissed her attorney from the

proceeding.      Id., ¶16.       The circuit court proceeded to hold

hearings in both phases of the proceeding without Shirley E. or

her   attorney       present   and   terminated     Shirley    E.'s   parental

rights.     Id., ¶18.

      ¶48    Parents have a statutory right to representation by an

attorney     under    Wis.   Stat.   § 48.23(2).     The   Shirley    E. court

concluded that the statutory right to an attorney is not limited

to parents who appear in person at court proceedings.                 298 Wis.

2d 1, ¶43.       A parent's attorney may act on behalf of a parent

who does not appear in person.          Id., ¶46.

      ¶49    The Shirley E. court further concluded that a parent's

statutory right to an attorney is preserved even after the entry

of a default judgment.           Id., ¶56.    Parents in termination of

parental rights proceedings have a statutory right to be heard

through an attorney in "a meaningful time and in a meaningful

manner."11    Id., ¶52.


      11
       The dissent appears to conclude that a parent cannot be
denied her statutory right to an attorney unless the court bars
the parent from participating "before any evidence [is]
presented" and remains barred throughout an entire trial.
Dissent, ¶127. It seems to ignore entirely the actual reasoning
of this opinion and that of the circuit court, which is that the
circuit court erroneously cut off Attorney Lehner before she
could put in her case.

     The dissent's analysis would unreasonably expand the
holding of Shirley E. by implying that a parent's participation
is meaningful except when the parent is entirely barred from
participating at trial. See id.

                                       20
                                                            No.    2011AP825 & 2011AP826



      ¶50    Accordingly, Mable K.'s statutory right to an attorney

did   not    expire   when    she    did    not    arrive         in    court    on   time.

Attorney     Lehner could act         on    her    behalf     at       the   fact-finding

hearing whether or not Mable K. personally appeared.

      ¶51     We agree with the parties and the circuit court that

the circuit court erroneously exercised its discretion when it

entered a default judgment against Mable K. finding that grounds

existed to terminate her parental rights after depriving her of

her statutory right to an attorney under Wis. Stat. § 48.23(2).

In these cases, Attorney Lehner requested an opportunity to be

heard and told the circuit court that she possessed "a lot of

evidence" on the issue of abandonment, which she thought would

make it "difficult for [Dane County] to prove abandonment" if

she   were    allowed   to    enter    it       into   the    record.           She   later

testified that she had intended to introduce additional evidence

tending      to   refute     the    allegations        of     continuing         need    of

protection or services.             However, the circuit court refused to

allow Attorney Lehner any opportunity to adduce that evidence.12



      12
       Dane County cites to an unpublished court of appeals
opinion, State v. Laura M., Nos. 2011AP2825, 2011AP2828,
2011AP2826, 2011AP2827, unpublished slip op. (Ct. App. March 27,
2012), in support of the argument that because Mable K. was not
present to testify, Attorney Lehner could not adduce any other
evidence.   However, Dane County ignores that in Laura M., the
circuit court specifically asked whether the parent's attorney
wished to call any witnesses and the attorney declined the
opportunity.   Id., ¶42.   In these cases, Attorney Lehner was
never asked if she had any other evidence, and when she asked
for an opportunity to present additional evidence, the circuit
court denied her request.

                                           21
                                                          No.    2011AP825 & 2011AP826



     ¶52   We    turn   next    to   address    whether         the   circuit    court

erroneously     exercised     its    discretion     in     entering     the    default

judgment finding that grounds existed to terminate Mable K.'s

parental rights before taking evidence sufficient to establish

the grounds alleged in the amended petitions.                    We look to Evelyn

C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768

for guidance.

     ¶53   In Evelyn C.R., a child's biological mother failed to

appear in person at a fact-finding hearing.                     246 Wis. 2d 1, ¶8.

Because the issue was to be tried before a jury, the circuit

court expressed apprehension about holding the hearing without

the mother's physical presence.               Id.     The parties rescheduled

the fact-finding hearing for a later date.                 Id.

     ¶54   There is no indication that the fact-finding hearing

before a jury ever commenced.             Instead, when the mother failed

to appear in person a second time, the petitioner moved for a

default judgment at the rescheduled hearing.                          Id., ¶9.    The

circuit court granted the petitioner's motion, found the mother

unfit based on the allegations in the petition, and scheduled

the case for a dispositional hearing.               Id.

     ¶55   The Evelyn C.R. court concluded that circuit courts

have a duty at the fact-finding hearing to find, by clear and

convincing evidence, that all of the elements of the allegations

in the petition have been met before granting a default judgment

against a parent.       Id., ¶24.        The duty to establish grounds is

"independent"     of    the    circuit    court's         authority     to    grant   a

default judgment.       Id., ¶¶25-26.
                                         22
                                                        No.     2011AP825 & 2011AP826



        ¶56   In   refusing    to     hear     Attorney     Lehner's     additional

evidence before entering a default judgment finding that grounds

existed to terminate Mable K.'s parental rights, the circuit

court put the cart before the horse.                  The circuit court could

not   make    a    decision   based    on     clear   and     convincing   evidence

having heard only one side's version of the facts when the other

side was requesting an opportunity to offer evidence that could

defeat the allegations in the amended petitions.                        See Evelyn

C.R., 246 Wis. 2d 1, ¶26.

        ¶57   Accordingly, we also conclude that the circuit court

erroneously exercised its discretion when it entered the default

judgment finding that grounds existed to terminate Mable K.'s

parental rights before establishing the grounds alleged in the

amended petitions by clear and convincing evidence.

                                              IV

        ¶58   We turn now to examine the remedy for the errors.                  The

circuit court concluded that the appropriate remedy would be to

return Mable K. procedurally to the time of the error.                           The

circuit court's remedy would place Mable K. after the testimony

from Dane County's abandonment witness had been taken outside

the presence of the jury, just before the circuit court entered

the default judgment finding that grounds existed to terminate

Mable     K.'s     parental   rights.           The   circuit      court    further

determined that Mable K. would be permitted to adduce additional

evidence, but before the circuit court, not before a jury.

      ¶59     Terminating parental rights works a "unique kind of

deprivation."        M.L.B. v. S.L.J., 519 U.S. 102, 118 (1996).                   A
                                         23
                                                             No.     2011AP825 & 2011AP826



parent's      interest       in   the        "accuracy       and     justice      of     the

decision . . . is . . . a commanding one."                         M.L.B., 519 U.S. at

118 (quoting Lassiter v. Dep't of Soc. Servs. of Durham Cnty.,

452 U.S. 18, 27 (1981)).             Although "the best interests of the

child" standard set forth in Wis. Stat. § 48.01(1) is a matter

of paramount consideration in a termination proceeding, it does

not   dominate      every    stage      of    the    proceeding.          The   statutes

carefully balance the interests of all participants including

those    of   the   parents.         Wis.      Stat.     § 48.01(1).           The     "best

interests of the child" standard does not dominate until the

parent has been found unfit.                   As this court stated in Julie
A.B.:

        Wisconsin Stat. § 48.01(1) provides in part: "In
        construing this chapter, the best interests of the
        child...shall always be of paramount consideration."
        (citations omitted.)

      Notwithstanding   this  broad   language,  the   "best
      interests of the child" standard does not dominate
      every step of every proceeding, because other vital
      interests must be accommodated.    When the government
      seeks to terminate parental rights, the best interests
      of the child standard does not "prevail" until the
      affected parent has been found unfit pursuant to Wis.
      Stat. § 48.424(4).
255 Wis. 2d 170, ¶¶21-22.

      ¶60     During   the    fact-finding          phase,    "the     parent's      rights

are paramount."        Id., ¶24 (quoting Evelyn C.R., 246 Wis. 2d 1,

¶22).     Thus, parents in the fact-finding phase of termination of

parental rights proceedings require heightened legal safeguards

to prevent erroneous decisions.               Shirley E., 298 Wis. 2d 1, ¶24.



                                             24
                                                                     No.     2011AP825 & 2011AP826



        ¶61    One    of     the   purposes        of    Chapter           48,    the   Children's

Code, is to provide for procedures through which all interested

parties       are    assured       fair    hearings           that     enforce       their    legal

rights.       Wis. Stat. § 48.01(1)(ad).                  The legislature intended to

be    expansive       in     its   according        of        legal        rights    to     parents.

Shirley E., 298 Wis. 2d 1, ¶43.                           Therefore, parents must be

provided with fundamentally fair procedures.                                     See Julie A.B.,

255 Wis. 2d 170, ¶22 (quoting Santosky v. Kramer, 455 U.S. 745,

753 (1982)).

        ¶62 There are problems inherent in restarting the half-

completed          hearing     that       render        the     circuit           court's    remedy

fundamentally unfair.              To begin, the jury is gone and a new one

cannot be empaneled halfway through the fact-finding hearing,

years      after     the     first      portion      of       the     fact-finding           hearing

occurred.

       ¶63     Another       problem       with     restarting             the     half-completed

fact-finding         hearing       is   that      Mable        K.    will        require     another

appointed attorney on remand.                      The new attorney will be stuck

defending Mable K. on a record where the circuit court has twice

found her not to be a credible witness.                                    The circuit court's

remedy sets the newly appointed attorney, and by extension Mable

K.,   up      to    fail   because      the    attorney         would        be     restricted   to




                                               25
                                                              No.     2011AP825 & 2011AP826



arguing against a default judgment that the circuit court has

previously granted.13

       ¶64       In essence, restarting the half-completed fact-finding

hearing shifts the burden to Mable K. to prove that she is not

an unfit parent.             Under the circuit court's remedy, Mable K.

would be forced to rebut Dane County's case from a hearing that

is now approximately two years old.                    The circuit court's remedy

conflicts with the requirement that the government bears the

burden      to    show     that   grounds      exist     for        the   termination    of

parental     rights,       and    that   the      parent      should      have   a    "full

complement of procedural rights."                 Julie A.B., 255 Wis. 2d 170,

¶24.

       ¶65       Holding    the   remainder       of    the    fact-finding          hearing

before the circuit court also appears contrary to the heightened

safeguards        envisioned      by   the   legislature            for   termination    of

parental rights proceedings.                 Wisconsin Stat. §§ 48.31(2) and

48.424(2) provide Mable K. with a statutory right to a jury

trial if she properly demands one.14                   None of the parties dispute

       13
       By setting any new attorney up                         to fail, the circuit
court's remedy defies the principle that                      the statutory right to
counsel includes the right to effective                       counsel.   See Shirley
E., 298 Wis. 2d 1, ¶¶36-39 (quoting A.S.                       v. State, 168 Wis. 2d
995, 1003, 485 N.W.2d 52 (1992)).
       14
       Wisconsin Stat. § 48.31(2) provides that a fact-finding
hearing shall be to the court "unless the . . . child's
parent . . . exercises the right to a jury trial by demanding a
jury trial at any time before or during the plea hearing."
Wisconsin Stat. § 48.424(2) additionally provides that fact-
finding hearings in termination of parental rights proceedings
"shall be conducted according to the procedure specified in s.
48.31 . . . ."

                                             26
                                                                      No.    2011AP825 & 2011AP826



that Mable             K.   properly demanded             a    jury    for    the    fact-finding

hearing addressing the grounds for termination.                                 Yet the circuit

court's remedy would take away that right.

        ¶66       The record is unclear as to what authority the circuit

court employed in denying the statutory right to a jury.                                       There

is nothing in the record to suggest that Mable K. waived her

right        to   a     jury.        The    circuit       court's       grant       of   a   default

judgment cannot be a default judgment entered under Wis. Stat.

§ 806.02(5),            which       allows     for    a       default       judgment     for    non-

appearance at trial.                 Mable K. appeared personally at the first

day of the fact-finding hearing and Attorney Lehner appeared on

her behalf on the day she was late for court.                                   Furthermore, no

other provisions of the default judgment statute apply because

Mable K. appeared in the action and fully participated until she

was late on the second day of the fact-finding hearing.

      ¶67         Arguably, the circuit court could have determined that

the   statutory             right    to    a   jury   was       forfeited       and      granted    a

default judgment as a sanction for violation of a court order
pursuant          to    Wis.    Stat.      § 805.03.15          The     record,      however,      is

        15
             Wisconsin Stat. § 805.03 states the following:


      For failure of any claimant to prosecute or for
      failure of any party to comply with the statutes
      governing procedure in civil actions or to obey any
      order of court, the court in which the action is
      pending may make such orders in regard to the failure
      as are just, including but not limited to orders
      authorized under s. 804.12(2)(a). Any dismissal under
      this section operates as an adjudication on the merits
      unless the court in its order for dismissal otherwise
      specifies for good cause shown recited in the order. A
                                                 27
                                                        No.     2011AP825 & 2011AP826



unclear.    That statute was never cited by the circuit court or

any attorney.

     ¶68    In    fact,   the      words   "sanction"      or      "forfeiture"     are

nowhere    to    be   found   in    the    transcripts     of      the   fact-finding

hearing    or    postdisposition      motion     hearing      as    they   relate   to

Mable K.    When asked at oral argument whether the record shines

any light on our inquiry into the procedures employed by the

circuit court when it entered the default judgment finding that

grounds existed to terminate Mable K.'s parental rights, Dane

County admitted that the record was "murky," despite the fact

that the attorney for Dane County had "read [the transcript]

over twenty times."

    ¶69     Even if the circuit court determined that Mable K.

forfeited her right to a jury and granted a default judgment as

a sanction, Wis. Stat. § 805.03 limits the sanctions that a

circuit court may impose for failure to comply with court orders

to those that are "just."            See also Indus. Roofing Servs., Inc.

v. Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898.

In order for a sanction dismissing a civil case to be "just,"

the non-complying party must act "egregiously or in bad faith."

Id.; Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296,

311-12, 470 N.W.2d 873 (1991).                  The Shirley E. court applied


     dismissal on the merits may be set aside by the court
     on the grounds specified in and in accordance with s.
     806.07. A dismissal not on the merits may be set aside
     by the court for good cause shown and within a
     reasonable time.


                                           28
                                                          No.     2011AP825 & 2011AP826



that requirement to default judgments at fact-finding hearings

in termination of parental rights proceedings.                        298 Wis. 2d 1,

¶13 n.3.

       ¶70    Where a circuit court concludes that a party's failure

to follow court orders, though unintentional, is "so extreme,

substantial and persistent" that the conduct may be considered

egregious,       the     circuit         court     may    make        a   finding    of

egregiousness.         Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531,

543, 535 N.W.2d 65 (Ct. App. 1995).                      Conversely, a party may

also    act     in     bad    faith,     which     by    its     nature     cannot    be

unintentional conduct.             Id.     To find that a party acts in bad

faith, the circuit court must find that the noncomplying party

"intentionally or deliberately" delayed, obstructed, or refused

to comply with the court order.              Id.

       ¶71    Although       the   circuit       court   at     the   postdisposition

motion hearing described Mable K.'s conduct as egregious and in

bad faith in retrospect, it made no reference to egregiousness

or   bad     faith   when    the   default judgment           finding     that   grounds

existed to terminate Mable K.'s parental rights was granted.

Likewise, there was no analysis as to whether Mable K.'s conduct

was "extreme, substantial and persistent."                       Hudson Diesel, 194

Wis. 2d at 543.              Any analysis of whether Mable K.'s conduct

"intentionally or deliberately" delayed, obstructed, or refused




                                           29
                                                                No.       2011AP825 & 2011AP826



to obey the court order is also absent from the record.16                                    Id.

Had the record clearly indicated that the default was imposed as

a sanction, then our analysis would be different.

          ¶72        Under these facts, the only fundamentally fair remedy

is    a        new    fact-finding   hearing.         A   new     fact-finding         hearing

honors the intent of the legislature by providing Mable K. with

heightened legal safeguards.                   Shirley E., 298 Wis. 2d 1, ¶24.

It provides Mable K. with the only remedy that can assure a fair

hearing that recognizes and enforces Mable K.'s statutory rights

to an attorney and to a jury.                  See Wis. Stat. § 48.01(1)(ad).
          ¶73        Additionally,   a   new    fact-finding          hearing     avoids     the

problems discussed above that are inherent in trying to renew

the   fact-finding           hearing     in    mid-stream.            A   new   jury   may    be

empaneled if Mable K. chooses to demand one.                               Her new attorney

may act on her behalf unfettered by the events of the first part

of    the        fact-finding    hearing       that   occurred            approximately      two

years in the past.               Unlike the circuit court's remedy, a new

fact-finding hearing places the burden on Dane County to prove

the allegations in the amended petitions.                        We therefore conclude

that the circuit court's remedy is fundamentally unfair here.

                                                V

          ¶74        In sum, we reverse and remand for a new fact-finding

hearing.             We conclude, and the circuit court has acknowledged,

          16
       The dissent appears to conclude that Mable K.'s conduct
was "egregious" in failing to timely appear in court on the
second day of the fact-finding hearing.    Dissent, ¶1.   As we
previously stated, we need not and do not address the egregious
conduct argument. See supra note 8.

                                               30
                                                        No.     2011AP825 & 2011AP826



that it erroneously exercised its discretion when it entered a

default judgment finding that grounds existed to terminate Mable

K.'s parental rights after barring her attorney from offering

additional evidence.       It also erred when it granted the default

judgment    before   taking    evidence      sufficient        to   establish       the

grounds alleged in the amended petitions.                     We further conclude

that the circuit court's remedy for correcting the errors is

fundamentally unfair under the facts of this case.17

     ¶75    Accordingly,      we   reverse    and   remand        to     the   circuit

court for a new fact-finding hearing to be heard by a jury if

Mable K. timely demands one.           On remand, the new fact-finding

hearing is to be held at the earliest reasonable opportunity.

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

reversed, and the cause is remanded to the circuit court for a

new fact-finding hearing.




     17
       If grounds for termination are found and Mable K. is
determined to be unfit at the fact-finding hearing, the matter
will then proceed to a dispositional hearing.

                                      31
                                                          No.      2011AP825 & 2011AP826.akz


        ¶76    ANNETTE       KINGSLAND       ZIEGLER,         J.     (dissenting).             I

respectfully dissent from the majority opinion, which concludes

that the circuit court must hold an entirely new jury trial on

all of the issues in this case when it is Mable K. who is solely

responsible         for    her    own   egregious       and     volitional         failure    to

appear    in    court.            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 at least two

children's lives continue to hang in the balance.                            Our system of

justice is designed to do better.

        ¶77    Mable K. chose not to come to court on the second day

of a fact-finding hearing in front of a jury.                          She knew when she

was to appear, but she chose not to follow the circuit court's

order.        Accordingly, I conclude that the trial court did not

erroneously exercise its discretion when it vacated the default

judgment      and    instead,       sanctioned     Mable        K.    for    her    egregious

behavior by ordering that the remainder of the evidence would be

heard as a court trial.                 The circuit court was not unreasonable

in concluding that Mable K. relinquished the right to a jury

trial when she chose not to appear before the jury that had been

impanelled.

        ¶78    Curiously, the majority opinion rests its conclusions

on the hypothetical scenario of default judgment remaining in

place    against          Mable    K.     However,      the        default   judgment        was

vacated.        It    is     not    before    this      court.         Nonetheless,          the

majority opinion concludes that because default judgment once

was granted, the rules of State v. Shirley E., 2006 WI 129, 298

                                              1
                                                 No.    2011AP825 & 2011AP826.akz


Wis. 2d 1, 724 N.W.2d 623, and Evelyn C.R. v. Tykila S., 2001 WI

110,    246    Wis. 2d 1,    629   N.W.2d 768,       have   been        irreparably

violated.       The   majority opinion       errs:   first,      by    ducking   the

issue this case actually presents, i.e., whether the circuit

court erroneously exercised its discretion by sanctioning Mable

K.'s egregious conduct by ordering that the trial be continued

as a bench trial; and second, by misapplying the opinions it

cites, given the facts of this case.

       ¶79    In short, the majority opinion is based on a factual

fiction that leaves a circuit court no ability to sanction a

party who egregiously disobeys a court order to appear for the

second day of a jury trial at which grounds for termination are

being adjudicated.       Instead, the majority rewards such a party.

The majority's analysis leaves the tail wagging the dog.

       ¶80    I conclude that the circuit court reasonably exercised

its    discretion     when   it    vacated    the      default        judgment   and

sanctioned Mable K. for her egregious conduct by reconvening the

termination of parental rights (TPR) proceeding as a trial to

the court, rather than selecting a second jury to replace the

jury that would have heard the termination proceeding if Mable

K. had appeared.

       ¶81    I also conclude that under Evelyn C.R., when a default

judgment is reviewed, we are to determine whether the circuit

court heard sufficient evidence on the grounds in the petitions

before it granted default.          Unlike Evelyn C.R., Dane County had

presented nearly all of the evidence in its case-in-chief before

the court sanctioned Mable K. by granting a default judgment due

                                       2
                                                              No.   2011AP825 & 2011AP826.akz


to her failure to appear before the jury.                              I further conclude

that   under    Shirley         E.,   Mable     K.'s      right      to    counsel      was    not

violated because her attorney substantively participated in the

proceedings.

       ¶82    There are and should be consequences for a party who,

without excuse, fails to appear for trial.                            Mable K. deserves a

fair trial, but these children deserve stability and security.

Isaiah H. and May K. remain innocent victims who now must wait

even   longer       for   a     conclusion          in   this       matter.        Instead      of

considering that this case also involves two young children, the

majority accepts review of a non-final order and sends this case

back   for     the    selection        of   a       second     jury       to   hear    the     TPR

proceeding.          In   so     doing,     the      majority        sends     a   message      to

parties who do not like the way a trial is going: do not show up

for the second part of the trial.                        You get a "do over."                 The

manner   in    which      the     majority          reaches     this      determination         is

unprecedented and, for these reasons, I respectfully dissent.

                I. THERE IS NO DEFAULT JUDGMENT TO REVIEW
       ¶83    Procedurally, Mable K.'s appeal is an attack on a non-

final order, and we should not have accepted review.                                           The

majority opinion grants an entirely new jury trial when there

has been no final order in the case below.

       ¶84    The     sanction        currently          before      the       court    is    the

continuation         of   the    fact     finding        as    a    bench      trial.         This

sanction arose out of a fact-finding hearing that commenced on

September 13, 2010.             Mable K. appeared for the first day of the



                                                3
                                                       No.   2011AP825 & 2011AP826.akz


hearing.1       However, she chose not to appear at the time set for

the second day of the hearing, despite being court ordered to do

so and being verbally reminded when to appear.                        Because of her

choice,      the   circuit       court   initially    entered       default    judgment

against Mable K., finding that there were grounds to terminate

her    parental      rights.        The    circuit     court    then      scheduled    a

dispositional hearing for January 3, 2011.                   At the dispositional

hearing, the circuit court terminated the parental rights of

Mable K., Wesley J., and Lee H.

       ¶85    After the dispositional hearing on January 3, 2011,

Lee H. and Mable K. both appealed; Wesley J. did not.                         The court

of    appeals      issued    a    decision       upholding    the    termination      of

parental rights for Lee H.                The court of appeals remanded the

case to the circuit court to determine whether the circuit court

had erroneously entered default judgment against Mable K.

      ¶86     On remand, the circuit court (1) vacated the orders

terminating her parental rights,2 and (2) returned Mable K. back

to the fact-finding hearing, before default was granted.                           Mable

K. is currently in a position to have counsel represent her and

present      evidence,      testimony,     and     witnesses.        No    final   fact



       1
       There are two parts to a TPR case. The first part is the
fact-finding hearing, where the jury or the court determines
whether there are grounds to terminate the parental rights.
Wis. Stat. § 48.424.      The second part is a dispositional
hearing, where the court determines whether TPR is in the
child's best interest. Wis. Stat. § 48.427.
       2
       We do not pass judgment today on whether the trial court
was correct in its vacation of the order terminating Mable K.'s
parental rights.

                                             4
                                                      No.   2011AP825 & 2011AP826.akz


finding     has   been    completed,      and    no   final   order   or     judgment

exists because the circuit court vacated the default judgment.

      ¶87    Appeals in TPR cases, under Wis. Stat. § 809.107, can

be taken from "an order or judgment" under Wis. Stat. § 48.43.

Because there was no final order in place, the court of appeals

concluded that neither party could appeal as a matter of right,

and it was not "inclined to grant leave" to appeal.                          Cf. Wis.

Stat. § 808.03(1); Wick v. Mueller, 105 Wis. 2d 191, 195-98, 313

N.W.2d 799 (1982) (concluding that an order for a new trial in a

civil case is not appealable as a matter of right because it

does not dispose of the entire matter).

      ¶88    It is quite unusual, if not unprecedented, for this

court to take such an appeal in a TPR case, where there is no

order or judgment to review.              Nonetheless, despite there being

no final order in place, the majority determines that Mable K.

is entitled to the extraordinary relief of a second jury to

replace the previous jury that Mable K. chose not to appear

before    beyond    the    first    day    of    testimony.        Curiously,     the

majority concludes that the circuit court "erroneously exercised

its discretion when it entered a default judgment" because the

default "depriv[ed] her of her statutory right to an attorney,"

and   because      the    default      was      granted     before    Dane     County

"establish[ed] the grounds alleged in the amended petitions."

See majority op., ¶¶51, 57.

      ¶89    By repeatedly discussing a default judgment that does

not exist, the majority opinion ducks the actual issue this case

presents, i.e., whether the circuit court erroneously exercised

                                          5
                                                                 No.   2011AP825 & 2011AP826.akz


its discretion in sanctioning Mable K.'s egregious conduct by

ordering that the trial will be continued as a bench trial.

                               II. FAMILY BACKGROUND

      ¶90    Notably         absent    from       the     majority             opinion      is   any

meaningful discussion of the court record concerning the family

background, repeated attempts to reunite the children with their

mother,     and   failure       of    Mable    K.       to       actively       engage      in   the

children's upbringing.                The majority opinion leaves Isaiah H.

and   May   K.    to    continue       hanging       in          the    balance,       neglecting

appropriate       consideration         of     the      children's              interests,       and

instead, affords considerable accommodation to a parent who has

not engaged in her children's lives for years and who, without

any reasonable excuse, did not timely attend the second day of

the jury trial at which grounds to terminate her parental rights

were being adjudicated.                According to the record before this

court, the lives of these children have hung in the balance for

far too long.

      ¶91    The majority opinion almost portrays Mable K. to be an

innocent     victim      of    circumstance.                 A     review       of    the    record

reflects     that      she    has     had    opportunity               after    opportunity      to

parent these children.                 The    record         reflects          that   in    January

2007, both of Mable K.'s sons, Samuel C.,3 age three, and Isaiah

H., age five and one-half at the time, were determined to need




      3
       Mable K.'s parental rights to Samuel C. were terminated in
a prior TPR case.    The transcript in this case indicates that
Mable K. arrived three hours late to that proceeding.

                                              6
                                                   No.   2011AP825 & 2011AP826.akz


care that no one could provide.4            The government placed both boys

in out-of-home care.          May K., Mable K.'s third child, was placed

at her current foster home shortly after May K. was born in

November 2008, because Mable K. was allegedly not able to meet

her daughter's needs consistently or keep her safe.                           At the

hospital, staff members raised concerns about Mable K.'s ability

to care for a newborn.5          The social worker opined that Mable K.

would not be able to meet the demands of a newborn baby.                         May

K., now over four years old, has lived outside of her parental

home consistently since she was born.

     ¶92    All   of    the     biological     parents    in    this    case    have

significant criminal histories, which, in and of itself, is not

grounds for termination.          However, the current record is replete

with allegations of their impaired ability to be available for

their children, and to provide for the children's basic needs,

stable housing, medical needs, and personal needs.                     Lee H., the

adjudicated father of Isaiah H., was incarcerated at the time

Isaiah     H.   was    placed    in   foster     care,    and    he     was    again

incarcerated in January 2010.           He has six criminal convictions.

Mable K. has at least two previous convictions for forgery, and

     4
       Isaiah H.'s father, Lee H., has had very little direct
contact with Isaiah H., has been unavailable, and has been on
the run or incarcerated.    After he was rearrested in January
2010, and placed in Dodge Correctional Institution, he had a
couple of phone contacts with a social worker in March and April
2010. His parental rights have been terminated and are not the
subject of this appeal.
     5
       The hospital staff observed Mable K. talking on the phone
and ignoring the baby.     On one occasion, Mable K. left the
hospital room while the baby was in Mable K.'s hospital bed. It
seemed as if Mable K. forgot that the baby was there.

                                        7
                                                               No.   2011AP825 & 2011AP826.akz


was on probation at the time her sons were placed in foster

care.       Initially, Mable K. did not disclose the name of May K.'s

father, Wesley J., purportedly because she was concerned that

Dane County would judge him by his previous criminal record.

Wesley J. was convicted of second-degree sexual assault of a

child and several other violent crimes.6

        ¶93    The record before us reflects that Mable K. and her

family have had many contacts with the Dane County Department of

Human       Services    (Dane    County)          and       have     been   the    subject        of

approximately         16   referrals         to       Dane    County.        In    short,        the

referrals alleged that the children were in need of protection

or services, that they had unaddressed health problems, and that

they were neglected.

     ¶94       As part of the services provided by Dane County, Mable

K. completed a psychological evaluation in 2007, and Dane County

attempted to provide her with mental health treatment.                                Mable K.

remains the only biological parent available to take care of the

two children at issue, as the parental rights of both biological

fathers       have    been terminated.                The     record     indicates        that   on

numerous       occasions,       Mable    K.       would       fail     to   show     up    for    a

confirmed       family     contact      or    would          simply    cancel      the     family

contact.        According to the court record, before the start of

this case on March 24, 2010, Mable K.'s last contact with her

children was on December 17, 2009.                            Following that date, she

purportedly          missed   three     weekly,              scheduled      family    contacts


        6
       Wesley J.'s parental rights have been terminated and are
not the subject of this appeal.

                                                  8
                                                         No.    2011AP825 & 2011AP826.akz


despite being told that she needed to have a meeting to discuss

the missed family contacts.              Nonetheless, the record indicates

that she failed to request or arrange such a meeting, and her

excuse for not making the scheduled contacts was that she had

many appointments and that it was none of Dane County's business

what she was doing.         At best, Mable K. has had sporadic contact

with her children.

        ¶95     According   to    Dane   County,         Mable      K.   did     not   make

consistent       progress    in   meeting         the    specified       court    ordered

conditions for the return of her children.                           She did not make

appropriate planning for the children or work closely towards

permanent placement with the assigned Dane County social worker

or     social    service    specialist.            The     reunification        team   was

involved with Mable K. and her children from mid-January 2009,

until April 23, 2009, at which time it was clear that Mable K.

was not ready for the children's transition to her full-time

care.         Mable K. was unable to consistently and appropriately

address the children's emotional needs and challenging behavior.

During her time with her children, Mable K. appeared to be more

focused on meeting her own personal needs rather than those of

her children.        Dane County explained that it attempted to avoid

terminating Mable K.'s parental rights.                        She was provided with

the    opportunity     to   utilize      a       variety       of   resources,     attend

meetings, participate in evaluations, attend court hearings, and

work     with      specialists     to    improve          her       parenting      skills.

Nonetheless, the record reflects that Dane County filed two TPR

petitions on March 24, 2010, which alleged that both Isaiah H.

                                             9
                                                                No.   2011AP825 & 2011AP826.akz


and   May    K.      were    children      in   need       of    protection        or     services

(CHIPS).       An amended petition was filed on June 1, 2010, which

also alleged that both children had been abandoned.

      ¶96      Despite her repeated contact with the system and the

gravitas of the subject matter, on the second day of the jury

trial,      Mable     K.     found    it    more      important            to    "get     me     some

breakfast"        because      she    was       "real      kind       of     sick"       from     the

proceedings and she "was just tired."

                       III. THE CIRCUIT COURT DID NOT ERR

                              A. The Conduct Was Egregious
      ¶97      The    circuit      court    did      not    erroneously           exercise        its

discretion in concluding that Mable K. demonstrated egregious

conduct by failing to appear at the second day of the fact-

finding hearing.            A sanction was warranted.

      ¶98      Notwithstanding that there is no default judgment to

review    in    this       case,   the     majority        relies       on      Evelyn    C.R.     to

support its conclusion that the default judgment was an improper

remedy.      However, unlike the majority, I undertake an analysis

of whether a sanction was justified by Mable K.'s failure to

appear,      and      then     I     determine        whether          the       circuit        court

erroneously exercised its discretion when it sanctioned Mable K.

by continuing the TPR proceeding as a bench trial rather than

impanelling a second jury.                  This analysis leads me to conclude

that Mable K.'s conduct was egregious and that the circuit court

did not erroneously exercise its discretion in sanctioning Mable

K. by reconvening the TPR proceeding as a trial to the court,

rather than selecting a new jury to replace the jury that would

                                                10
                                                      No.   2011AP825 & 2011AP826.akz


have heard the termination proceeding if Mable K. had timely

appeared.

      ¶99     A circuit court has inherent and statutory power to

sanction parties who fail to obey court orders.                       Evelyn C.R.,

246 Wis. 2d 1, ¶17.          Under this authority, a circuit court may

sanction a party who fails to comply with a court order.7                         Id.

The decision to sanction a party is within the sound discretion

of the circuit court.           Id., ¶18; Oostburg State Bank v. United

Sav. & Loan Ass'n, 130 Wis. 2d 4, 11, 386 N.W.2d 53 (1986).                        An

appellate      court       reviews     a    circuit     court's      discretionary

determination for an erroneous exercise of discretion.                       Evelyn

C.R., 246 Wis. 2d 1, ¶18.              A reviewing court will affirm the

circuit court's exercise of discretion if the circuit court has

examined the relevant facts, has applied a proper standard of

law, and has used a demonstrated, rational process to reach a

conclusion     that    a     reasonable       judge   could     reach.      Loy   v.

Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

      ¶100 Before a circuit court may sanction a party who failed
to   comply    with    a   court     order,     the   party's    conduct   must   be


      7
       Wisconsin Stat. § 802.10(7), "Sanctions," provides that
"[v]iolations of a scheduling or pretrial order are subject to
ss. 802.05, 804.12 and 805.03."       Wisconsin Stat. § 805.03,
"Failure to prosecute or comply with procedure statutes,"
provides in part: "[F]or failure of any party to . . . obey any
order of court, the court in which the action is pending may
make such orders in regard to the failure as are just, including
but not limited to orders authorized under s. 804.12(2)(a)."
Wisconsin Stat. § 804.12(2)(a)3., "Failure to comply with
order," gives the court the power to provide "just" sanctions
for failure to obey an order, including "rendering a judgment by
default against the disobedient party."

                                           11
                                                      No.   2011AP825 & 2011AP826.akz


egregious or in bad faith.             Shirley E., 298 Wis. 2d 1, ¶13 n.3.

Failure to comply with a circuit court scheduling order without

a clear and justifiable excuse is egregious conduct.                              Indus.

Roofing      Servs.,     Inc.    v.    Marquardt,     2007     WI    19,    ¶43,        299

Wis. 2d 81,       726    N.W.2d 898.            "Egregious"    conduct      has     been

defined as "extreme, substantial, and persistent."                         Id.     While

the record on appeal must reflect the circuit court's reasoned

application of the appropriate legal standard to the relevant

facts,     an     appellate      court     need     not     remand    for        such     a

determination       if   the     circuit    court's       finding    was    implicit.

Englewood Cmty. Apartments Ltd. P'ship v. Alexander Grant & Co.,

119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984) ("[A]

remand directing the trial court to make an explicit finding

where it has already made unmistakable but implicit findings to

the   same      effect   would    be     both    superfluous    and    a    waste        of

judicial resources.").

        ¶101 After Dane County filed the petition to terminate her

parental rights, Mable K. was ordered to appear personally at
all proceedings in this case by a court order dated May 24,

2010.     Nearly six months later, a fact-finding hearing before a

jury commenced on September 13, 2010.                 Mable K. appeared for the

first day of the jury trial, but chose not to appear for the

second day of trial at the time when she was instructed to

appear.

      ¶102 Mable K. is not an innocent victim of circumstance who

was unfairly sanctioned.               The circuit court entered an order

requiring that Mable K. personally appear at all hearings.                              The

                                           12
                                                    No.     2011AP825 & 2011AP826.akz


circuit court took extra effort to remind her at the conclusion

of the first day of trial to be in court the next day before 9

a.m.       Mable K. ignored the circuit court's directive and did not

come to court at 9 a.m. to defend herself in a matter where her

children could be taken away forever.

       ¶103 The circuit court and counsel undertook efforts to get

her to court.         She did not come to court when she was instructed

to be there or even when she said that she would be there.                        When

she    did    not    show,   the    circuit   court,   the    jury,   and   counsel

waited for her.

       ¶104 Specifically, her attorney (Attorney Lehner), who had

talked with Mable K. earlier that morning, later called her to

persuade her to come to court.                Mable K. told Attorney Lehner

that she would ride her bike to court and be there within a

half-hour,      by    9:45   a.m.      By   10:35   a.m.,     she   still   had    not

arrived.       At that point, the circuit court concluded that a

sanction was warranted, and it found Mable K. in default on both

of the allegations, CHIPS and abandonment.8

       8
       This court has previously rejected the argument that a
parent has an absolute right to a jury trial under the TPR
statutes.    Steven V. v. Kelley H., 2004 WI 47, ¶33, 271
Wis. 2d 1, 678 N.W.2d 856. A parent's right to a jury trial in
TPR proceedings is statutory, not constitutional.     Id., ¶4.
Because TPR proceedings are civil in nature, the general rules
of civil procedure are applicable unless Chapter 48 of the
Wisconsin Statutes provides a more specific rule. See id., ¶32.
The court in Steven V. concluded:

       The circuit court, however, is always responsible for
       conclusions of law, as is specifically recognized in
       the TPR statutes.   See Wis. Stat. § 48.31(4).    If a
       motion for summary judgment is made and supported as
       prescribed by Wis. Stat. § 802.08, the circuit court
       may properly conclude at the fact-finding hearing that
                                 13
                                         No.   2011AP825 & 2011AP826.akz


     ¶105 At approximately 10:45 a.m., nearly two hours late,

Mable K. finally arrived and counsel moved for relief from the

default judgment.    The circuit court allowed Mable K. to testify

about why she did not appear, and she stated that she was "real

kind of sick" from the proceedings, she "was just tired," and

she wanted to "get me some breakfast."         She acknowledged that

Attorney Lehner warned her of the consequences of failing to

appear.   Mable K. said that she did not sleep well and had just

woken up around 9 a.m.     She testified that she knew she needed

to be at the court by 9 a.m.

    ¶106 In its initial decision, the circuit court did not

explicitly use the word "egregious," but a review of the record

     there is   no genuine issue of material fact in dispute
     and the    moving party is entitled to partial summary
     judgment    on parental unfitness as a matter of law.
     See Wis.   Stat. § 802.08(2).

Id., ¶34. Further, several cases have concluded that a directed
verdict pursuant to Wis. Stat. § 805.14(4) applies to TPR
proceedings. Id., ¶32 (citing Door Cnty. DHFS v. Scott S., 230
Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999); J.A.B. v.
Waukesha Cnty. Human Servs. Dep't, 153 Wis. 2d 761, 765, 451
N.W.2d 799 (Ct. App. 1989)).    See also Wis. Stat. § 971.04(3)
(stating that if defendant is present at beginning of criminal
jury trial, then voluntarily absents himself, the trial may
proceed without the defendant).

     It is also interesting to note that only five states
currently allow jury trials in TPR cases.        See Wis. Stat.
§ 48.31(2); Tex. Fam. Code Ann. § 105.002 (West 2012); Okla.
Stat. Ann. tit. 10A, § 1-4-502 (West 2012); Wyo. Stat. Ann.
§ 14-2-312 (West 2012); Va. Code Ann. § 16.1-296 (West 2012);
Linda Szymanski, Is a Jury Trial Ever Available in a Termination
of Parental Rights Case?, National Center for Juvenile Justice
Snapshot, March 2011, Vol. 16, No. 3; James L. Buchwalter,
Annotation, Right to Jury Trial in Child Neglect, Child Abuse,
or Termination of Parental Rights Proceedings, 102 A.L.R. 5th
227 (2002).

                                 14
                                                 No.   2011AP825 & 2011AP826.akz


makes clear that the court did find her conduct to be egregious.

Our court does not require a circuit court to use "magic words"

when    undertaking   a    legal   analysis     and    in    making     findings.

Englewood, 119 Wis. 2d at 39 n.3.              Furthermore, the court did

find that Mable K. was not credible.             The court considered her

excuses but also noted that Mable K. previously arrived three

hours late in the TPR proceeding for her son Samuel C.                    Indeed,

at a hearing on August 26, 2011, the circuit court judge stated:

            It was and, frankly, still is evident to this
       Court on this record in this Court's view that it is
       an egregious violation of the Court order given the
       fact that it was orally issued to Ms. K., it was given
       to   her  in   written  form,    she  is  in   a  jury
       trial, . . . the fact that she was reminded when the
       Court concluded its proceedings the first day of trial
       on the 13th that she needed to be here a little bit
       before 9:00, this is egregious to the Court and it is
       without justifiable basis.    It's either egregious or
       in bad faith . . . but definitely I don't think you
       even need to use those magic words for those things to
       in fact be true.
       ¶107 I agree with the circuit court that Mable K.'s conduct

was deserving of a sanction.         Although the court did not use the

word "egregious" initially, the record reflects that the court

found her conduct to be egregious.             The circuit court did not

erroneously exercise its discretion when it sanctioned Mable K.

for her failure to appear.

       ¶108 The   record    reflects    that    the     circuit     court    made

several   findings    to   support     the   sanction       for   her   egregious

behavior.     The court cited to the following facts: that the

order dated May 24, 2010, required Mable K. to appear personally
at all hearings; that at the end of the first day of the fact-


                                       15
                                                           No.   2011AP825 & 2011AP826.akz


finding hearing, the court informed all parties that they needed

to be in court shortly before 9 a.m. on the next day; that she

had shown up late to a previous TPR proceeding; and that the

court did not find her explanation about why she could not have

followed the court order credible.                    In short, Mable K. failed to

demonstrate any credible reason for her failure to appear at the

time set by the court.

      ¶109 I    conclude      that       Mable      K.'s    actions     were    especially

egregious in the context of a TPR trial.9                          It took nearly six

months from the time the TPR petition was filed until the time

of the trial.         The circuit court held eight hearings before the

first day      of trial,      including          several      hearings    based    on    the

petitions, two pretrial conferences, and two motion hearings.

The   circuit    court      and    the    parties       all      completed     substantial

pretrial    work,      much   of     which       is   now     rendered    void     by    the

majority opinion.           In addition to the large amount of pretrial

work, there was a full day of the fact-finding hearing before

Mable K. failed to follow the court's order.10

      ¶110 Mable       K.   was    the        witness      her   attorney      would    have

called, but her failure to appear precluded her attorney from

presenting      her    testimony         in    an     attempt      to   rebut     evidence


      9
       A circuit court may grant a default judgment in a TPR
proceeding for a non-appearing party if, inter alia, there is
sufficient evidence to support the grounds for the petition and
the default does not violate the party's statutory right to
counsel. See infra, parts III.B. and III.C.
      10
       The transcripts in this case total 587 pages from the
time the petition was filed though the first day of the fact-
finding hearing.

                                               16
                                                      No.    2011AP825 & 2011AP826.akz


presented in support of the petitions to terminate her parental

rights.11     The court and the jury were not required to wait until

Mable K. chose to arrive.           Mable K.'s conduct was egregious, and

a sanction was appropriate.               If Mable K. valued a jury trial,

she should have appeared for the second day of the trial.                          That

the   court    chose     not   to   put   Dane   County       to   the    expense   of

impanelling a second jury, and instead chose to conclude the

fact-finding hearing as a bench trial, is within the circuit

court's discretion.

      B. Majority Opinion Errs In Its Analysis Of Evelyn C.R.

      ¶111 The majority claims to rely on Evelyn C.R. to support

its determination that a second jury must be impanelled and the

trial to begin anew.           In my view, because the circuit court had

a significant evidentiary record before it, the court did not

violate the rule of Evelyn C.R.

      ¶112 In Evelyn C.R., we held that "the circuit court had

the   duty    at   the   fact-finding       hearing     to    find   by    clear    and

convincing evidence that all of the elements" of the allegations

      11
       At the postconviction motion hearing on August 16, 2011,
Attorney Lehner testified that she intended to call Mable K. to
rebut both grounds for termination of her rights that were set
out in the petition.    Attorney Lehner also testified that she
intended to cross-examine Joyce Brown to rebut the CHIPS claim,
but Brown was never called as a witness in the fact-finding
hearing.   The petitioners rested the case as to Mable K. after
the testimony of Brenda Blank and Mike Boehm, and Attorney
Lehner was allowed to cross-examine both of these witnesses.
Further, Dane County asked Attorney Lehner if she would have
called any other witnesses on her witness list during the fact-
finding hearing, and she stated that she would have called the
social workers if the other parties had not already called them.
She did not name any other witnesses that she was prevented from
calling to testify.

                                          17
                                                            No.    2011AP825 & 2011AP826.akz


in the petition are met.               246 Wis. 2d 1, ¶24.                 In Evelyn C.R.,

the   court       did   not    hold     a    fact-finding          hearing.           Id.,   ¶9.

Instead, the court granted default against the mother, Tykila

S., for failure to appear personally, finding her unfit based

solely upon allegations in the petition.                           Id.     In Evelyn C.R.,

the   circuit       court     "had    no    evidentiary           basis    to    support     its

finding of abandonment."              Id., ¶24.

        ¶113 By contrast, in Mable K.'s case, the circuit court

heard        evidence   supporting          the    CHIPS     and     abandonment        claims

before       it    decided    to     sanction       Mable     K.          Dane    County     had

presented         evidence    at     trial,       which    was      tested       by   Attorney

Lehner's       cross-examination.             The    circuit       court     made     explicit

findings that Mable K. was unfit on both grounds.                               If no further

testimony was taken, it is because Mable K. did not come to

court to be her own witness.                  The procedural posture of Evelyn

C.R. is clearly distinguishable from the posture of this case at

the time that Mable K. was sanctioned by the circuit court.

      ¶114 For       example,        unlike       Evelyn   C.R.,     the     circuit       court
heard substantial testimony against Mable K., nearly all of Dane

County's case-in-chief.12              On the first day of the fact-finding



        12
       To   establish    a   CHIPS   claim  under  Wis.   Stat.
§ 48.415(2)(a) "Continuing need of protection or services," the
petitioner must prove the following:

             1. That   the   child   has              been   adjudged  to   be   a
                child . . . in need of                protection or services and
                placed, or continued in               a placement, outside his or
                her home pursuant to one             or more court orders under s.
                48.345 . . . containing              the notice required by s.
                48.356(2);

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hearing, before default was an issue, the circuit court heard

testimony from Brenda Blank (Blank), Mable K.'s case worker.

First, during Blank's testimony, Dane County introduced orders

adjudging both Isaiah H. and May K. as children in need of

protection or services and placing them outside of Mable K.'s

home.    The orders, which were entered as exhibits, contained the

notice     required      by    Wis.   Stat.      § 48.356(2).            Second,      Blank

testified that Dane County "definitely did" make a reasonable

effort    to    provide       the   services     ordered    by     the    court.        For

example,       Mable    K.    received      one-on-one      parent       education      and

support, was assigned a social service specialist, worked with a

family reunification team, and worked with Blank on specific

tasks    she    could    complete     to    meet    the    conditions          of   return.

Third, Blank testified that both children had spent more than

six   months     outside       of   Mable    K.'s   home.        May      K.    has    been

continuously outside of the home since she was born, in November

of 2008.        Isaiah H. has been continuously outside of the home

since    2007.         Finally,     Blank    testified      that     Mable      K.    "will



         2. That the agency responsible for the care of the child
            and the family . . . has made a reasonable effort to
            provide the services ordered by the court;

         3. That the child has been outside the home for a
            cumulative total period of 6 months or longer pursuant
            to such orders; and

         4. That the parent has failed to meet the conditions
            established for the safe return of the child to the
            home and there is a substantial likelihood that the
            parent will not meet these conditions within the 9-
            month period following the fact-finding hearing under
            s. 48.424.

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                                                                 No.    2011AP825 & 2011AP826.akz


absolutely          not"     meet      the    conditions         for     return       within     nine

months of the fact-finding hearing.                          Blank testified that Mable

K.    failed        to   meet      a    majority      of    the    conditions          of   return,

including maintaining housing, showing interest in the children,

maintaining regular visits without canceling, showing that she

could properly care for the children, and staying in touch and

cooperating with the social worker.                          Mable K.'s counsel cross-

examined Blank.

        ¶115 The circuit court also heard evidence of the grounds

of abandonment13 before it decided to sanction Mable K.                                           The

CHIPS        orders      introduced       during      Blank's          testimony      satisfy     the

first element of abandonment.                      Further, it is notable that after

Dane County moved for a default against Mable K., the court

stated, "I need to have Mr. Boehm on the stand . . . to make the

findings           related    to       default      on     Ms.    K.     on   the     abandonment

ground."           Dane County then called Michael Boehm to testify on

the   abandonment            ground.          Boehm      testified        that    Mable     K.    had

failed       to     communicate with              her children          for   more     than three
months before the petitions to terminate her parental rights

were filed, which satisfies the second element of abandonment.

Boehm        was    also     subject         to    cross-examination             by   Mable      K.'s

counsel.
        13
       One way to establish an abandonment claim                                       under     Wis.
Stat. § 48.415(1), is for the petitioner to prove:

             1. That the child has been placed, or continued in a
                placement, outside the parent's home by a court order
                containing the notice required by s. 48.356(2) . . . ,
                and
             2. [That] the parent has failed to visit or communicate
                with the child for a period of 3 months or longer.
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                                                    No.    2011AP825 & 2011AP826.akz


       ¶116 Unlike     Evelyn    C.R.,        wherein     the    court      heard     no

evidence,     the   circuit     court    here    heard     nearly     all       of   Dane

County's      evidence——evidence         that     was      subject         to    cross-

examination——on both grounds before it found Mable K. unfit and

sanctioned her.        Indeed, "[i]f grounds for the termination of

parental rights are found by the court or jury, the court shall

find    the   parent   unfit."          Wis.    Stat.     § 48.424(4)       (emphasis

added).

       ¶117 The majority opinion unnecessarily extends the rule in

Evelyn C.R. such that it undermines the role of a circuit court

in TPR proceedings.        The majority opinion does not evaluate the

evidence, does not give proper deference to the circuit court's

exercise of its discretion, and ultimately does not evaluate

whether grounds were established.

       ¶118 According to the record, Mable K., the absent parent,

had the opportunity to present testimony to rebut the evidence

that   was    presented   on    the   grounds     alleged       as   the    basis    for

finding her unfit.        She chose not to come to court where a jury
had been impanelled, and it is not her attorney's fault that no

other witnesses testified that day.

       ¶119 The majority opinion unnecessarily undercuts a circuit

court's authority to sanction a non-appearing parent by trying

the case to the court rather than impanelling a second jury.

The majority opinion does so because it never analyzes whether

the sanction the circuit court chose was within its discretion.

Cf. Shirley E., 298 Wis. 2d 1, ¶70 (Prosser, J., concurring)

("[T]his court's decision to protect a parent who did not care

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                                                         No.    2011AP825 & 2011AP826.akz


enough to appear and defend herself, seriously undercuts the

authority    of    circuit         judges        to    enforce          their     orders.").

Instead, the majority opinion pretends that the default judgment

that has been vacated still exists.

      ¶120 Not     only    is   giving       Mable       K.    a    second       jury       trial

unjustified, but it fails to consider the children's interests.

The   negative    impact     the    majority          opinion      has     on    May    K.   and

Isaiah H. adds insult to injury.                 After all, these children have

not lived with their biological mother for years.                              This petition

was filed nearly three years ago, on March 24, 2010, and was

filed based on allegations that these children are in need of

protection   or    services     and    that       they    have          been    abandoned by

Mable K. and the biological fathers.                    The children must now wait

even longer to resolve their family status.                         It is not Mable K.

who   was   treated       unfairly    in     these       proceedings,            it    is    her

children.

        C. Majority Opinion Errs In Its Analysis Of Shirley E.

      ¶121 The majority opinion also concludes that Mable K. was
deprived on her statutory right to counsel under the rule of

Shirley E.    See majority op., ¶51.                  However, unlike Shirley E.,

Mable K. had a lawyer and still has a lawyer.                            It is clear from

the record that counsel was a zealous advocate for Mable K.

throughout   the    pretrial        proceedings          and       at    trial.        Counsel

vigorously advocated for Mable K. even after she did not appear.

Even now, Mable K. and her lawyer can mount a defense at the

unfinished trial.         Because the circuit court vacated the default

judgment, the case awaits conclusion at the continued trial.

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                                                       No.    2011AP825 & 2011AP826.akz


        ¶122 The majority relies on Shirley E. to conclude that

Mable K. was wrongfully deprived of counsel and a second jury

trial is required.          Notably, however, the procedural posture in

Shirley E. and the procedural posture of the case today are

quite different.           In Shirley E., the court granted a default

against Shirley E. because she violated a court order personally

to appear.        298 Wis. 2d 1, ¶13.            However, unlike counsel for

Mable K., counsel for Shirley E. was not allowed to participate

in any way at the hearings.            Id., ¶18.        This court held that the

circuit court violated Shirley E.'s statutory right to counsel

because    it    granted     a    default    judgment        against   her    and   also

dismissed       Shirley     E.'s    counsel      from    the       fact-finding      and

dispositional hearing before any evidence was taken.                          Id., ¶56.

Without    counsel    or    Shirley E. present,              the   court   found    that

Shirley E. was unfit, and it terminated her parental rights.

        ¶123 Simply stated, Shirley E. involved a total denial of

counsel at the fact-finding and dispositional phases, which is

not even remotely similar to the facts presented in this case.
To be clear, Mable K. chose not to follow the court's order that

she appear by 9 a.m.             Instead, she slept late, stayed home, and

ate breakfast, all the time knowing that she was required to be

in court for the continuation of her trial where she was to be

her own witness.          Mable K. should be required to live with the

consequences of the choices she made that morning.                            Mable K.

absented    herself       from   the   trial,    and    because     counsel       had no

other     scheduled       witnesses     until    the     third      day      of   trial,

anticipating that Mable K.'s testimony would fill the second day

                                            23
                                                       No.    2011AP825 & 2011AP826.akz


of trial, Mable K. created the problem of counsel having no one

to call on the second day of trial.               See supra note 11.

        ¶124 Moreover, unlike Shirley E., Mable K.'s attorney did

participate       substantively        in    pretrial        matters   and    at   the

hearings.       On the first day of the fact-finding hearing, counsel

gave an opening statement that summarized why Mable K. should

not be found unfit.           Also on the first day of the hearing, Dane

County presented testimony of Brenda Blank, one of Mable K.'s

case workers.          During that testimony, Attorney Lehner objected

to hearsay at least five times and her objections were sustained

several times.           On the second day of the hearing, even though

Mable K. was not present, the trial continued.                      Attorney Lehner

cross-examined Blank, who testified regarding the CHIPS claim.

Later     in    the      hearing,    Attorney    Lehner        cross-examined      Dane

County's witness Michael Boehm, a social service specialist, who

testified regarding the abandonment claim.

        ¶125 After Mable K. arrived, the circuit court allowed her

to testify as to why she was late, and Attorney Lehner argued on

Mable    K.'s     behalf    that     the    circuit    court    should    vacate   the

default judgment.           Counsel was present and vigorously defended

Mable K. with respect to the sanction imposed.                      After Mable K.'s

testimony, the circuit court asked Attorney Lehner whether she

had any        further    evidence    or    witnesses    to    present.      Attorney

Lehner responded that she did not.                    The circuit court did not

take    further       evidence   against     Mable    K.;    Dane   County   and   the

guardian ad litem rested immediately after Mable K. testified.



                                            24
                                           No.   2011AP825 & 2011AP826.akz


     ¶126 Mable    K.   and   Attorney   Lehner     appeared    at     the

dispositional hearing on January 3, 2011, where Attorney Lehner

once again cross-examined Dane County's witnesses.           At the end

of one witness's testimony, the circuit court asked Attorney

Lehner if she had further questions, and she responded that she

did not.   The circuit court then asked all of the parties if

they had any further evidence that they would like to produce,

and Attorney Lehner responded "No, Your Honor."

     ¶127 Unlike   in   Shirley   E.,    where    the   circuit      court

dismissed Shirley E.'s attorney from the courtroom before any

evidence was presented, Attorney Lehner actively participated in

the trial and vigorously defended Mable K.'s actions.           Based on

the extensive participation of Attorney Lehner in this case, I

would conclude that Mable K.'s right to counsel was not violated

under the standards this court set in Shirley E.14

     ¶128 For the foregoing reasons, I conclude that the circuit

court did not err; accordingly, I respectfully dissent.

     ¶129 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.




     14
       At the Machner hearing, Attorney Lehner testified that
she did not have witnesses available and that Mable K.'s absence
left her without any viable witnesses through which she could
present evidence.    Counsel testified that she did not have
advanced notice that Mable K. would not appear.        If trial
counsel was left with no option, that was Mable K.'s own doing.
Mable K. testified that Attorney Lehner had explained the
effects of a default judgment. In other words, Mable K. created
her own prejudice by failing to appear.

                                  25
