Evelyn CR v. Tykila S., No. 00-1739.

• Court: United States State Supreme Court of Wisconsin
• Citation: 2001 WI 110,629 N.W.2d 768,246 Wis.2d 1
• Decision Date: 12 July 2001
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS TO JAYTON S., a Person Under the Age of 18: EVELYN C. R., Petitioner-Respondent, v. TYKILA S., Respondent-Appellant-Petitioner.
• Docket Number: No. 00-1739.

246 Wis.2d 1
2001 WI 110
629 N.W.2d 768

IN RE the TERMINATION OF PARENTAL RIGHTS TO JAYTON S., a Person Under the Age of 18:
EVELYN C. R., Petitioner-Respondent,
v.
TYKILA S., Respondent-Appellant-Petitioner

No. 00-1739.

Supreme Court of Wisconsin.

Oral argument April 25, 2001.

Decided July 12, 2001.

246 Wis.2d 6

For the respondent-appellant-petitioner there were briefs by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis.

For the petitioner-respondent there was a brief by Theresa L. Roetter and Stafford Rosenbaum LLP, Madison, and oral argument by Theresa L. Roetter.

There was a brief and oral argument by the guardian ad litem, Janet Rasmussen, Madison.

¶ 1. JON P. WILCOX, J.

This is a review of a court of appeals decision, Evelyn R. v. Tykila S., No. 00-1739, unpublished slip op. (Wis. Ct. App. Sept. 21, 2000), which affirmed an order by the Dane County Circuit Court, Judge Maryann Sumi, terminating Tykila S.'s (Tykila) parental rights to her biological

246 Wis.2d 7

son, Jayton S. (Jayton). After Tykila violated a court order to appear in person at the fact-finding hearing intended to determine whether she had abandoned her son, the circuit court entered a default judgment against Tykila on the issue of abandonment without first taking any evidence on the matter. At the subsequent dispositional hearing, the circuit court accepted testimony supporting the termination of Tykila's parental rights to Jayton and, based on this testimony, reaffirmed the default judgment against Tykila and entered an order terminating Tykila's parental rights to Jayton

¶ 2. Tykila now petitions this court to review the court of appeals decision, which affirmed the circuit court order terminating her parental rights. In doing so, she raises a single issue: Did the circuit court err in entering a default judgment on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence?

¶ 3. We conclude that the circuit court did err in entering the default judgment against Tykila on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence. However, upon review of the entire record in this case, we further conclude that the circuit court remedied this error at the dispositional hearing when, prior to reaffirming the default judgment and entering the order terminating Tykila's parental rights to Jayton, the court took evidence sufficient to support by clear and convincing evidence a finding that Tykila had abandoned Jayton. As such, the error was harmless. Accordingly, we affirm the decision of the court of appeals.

246 Wis.2d 8

I

¶ 4. The following facts are undisputed. Jayton was born on May 2, 1992. He has lived with and been cared for by his paternal grandmother, Evelyn R. (Evelyn), for virtually his entire life, and in November 1997, Evelyn was appointed Jayton's legal guardian. For approximately five years prior to the initiation of the present proceedings, Jayton's biological mother, Tykila, had not had any contact with Jayton.

¶ 5. On October 12, 1999, in order to adopt Jayton, Evelyn filed a pro se petition in Dane County Circuit Court for the termination of Tykila's parental rights to Jayton. The circuit court subsequently held a hearing on this petition, during which it expressed concern about the facts that Evelyn's petition lacked an accompanying affidavit and neither Evelyn nor Tykila had counsel. Due to these concerns, the court ordered Evelyn and Tykila to obtain counsel, and set a date for a continued hearing.

¶ 6. On November 24, 1999, after obtaining counsel, Evelyn filed an amended petition and supporting affidavit for the termination of Tykila's parental rights to Jayton.¹ In this petition, Evelyn alleged in pertinent part that Tykila had "abandoned" Jayton, as defined by Wis. Stat. § 48.415(1)(a)3 (1997-98):² "Tykila [S.] knew

246 Wis.2d 9

or could have discovered the whereabouts of the child [Jayton], and she failed to visit or communicate with the child since December, 1994."³

¶ 7. Tykila denied that she had abandoned Jayton. Although she did not dispute the fact that she had not contacted Jayton since December 1994, she claimed that she did not know nor could she have discovered Jayton's whereabouts. Because Tykila contested Evelyn's petition, the court scheduled a fact-finding hearing for February 28, 2000, which, at Tykila's request, would be held before a twelve-person jury.

¶ 8. On February 28, 2000, Tykila failed to appear in person at the fact-finding hearing. The court did manage to reach Tykila by phone, but, in light of the fact that the jury would be required to determine whether Tykila had abandoned Jayton, the court expressed great apprehension about holding the hearing without Tykila's physical presence. As the court explained:

My concern in a case like this where the sole ground is abandonment, and the defendant does not appear, does that irretrievably persuade the jury that she in fact has abandoned this child because she didn't even—you can finish the sentence for me—care enough to show up. And is that something that once the jury panel and the jurors are exposed to her appearing by telephone, I can offer any reason

246 Wis.2d 10

in the world, but I don't know that it's going to be enough to undo the impression that would be left with the jury.

Tykila's attorney agreed with the court that it likely would be highly prejudicial to Tykila to proceed with the hearing in Tykila's absence and, for this reason, objected to proceeding. In the wake of this objection, the court offered Tykila several options, including proceeding with a trial to the court. Tykila refused the court's offers and insisted that the hearing be held before a jury. Evelyn then moved for a default judgment against Tykila. The court denied Evelyn's motion, released the jury panel, and rescheduled the fact-finding hearing for April 3, 2000. However, the court issued an oral and written order that Tykila appear in person at 9:00 a.m. on April 3, 2000, and at "all subsequent proceedings held in this case," or face a potential default judgment.

¶ 9. On April 3, 2000, Tykila again failed to appear in person. Evelyn thus moved for a default judgment against Tykila. Jayton's GAL voiced "[n]o objection" to the motion. And Tykila's attorney merely stated: "I would object and waive argument." After noting on the record that Tykila was ordered to appear at 9:00 a.m. and that it was then 9:40 a.m., the court granted Evelyn's motion. The court further found, based on the allegations in Evelyn's petition for the termination of Tykila's parental rights to Jayton, that Tykila had abandoned Jayton and, as such, grounds existed under § 48.415(1)(a)3 to terminate Tykila's parental rights to Jayton. Hence, the court found Tykila to be an unfit parent and scheduled the case for a hearing to determine what disposition would be in Jayton's best interests.

246 Wis.2d 11

¶ 10. The court held the dispositional hearing on April 11, 2000. Once again, Tykila failed to appear in person. Nonetheless, the court proceeded to hear testimony

¶ 11. Evelyn provided the court with testimony relevant to Tykila's alleged abandonment of Jayton. Evelyn testified in part that Jayton had lived with her since May 1992, and that she and Jayton had lived in Madison since December 1994. She further testified that her address and telephone number had been listed in the telephone directory the entire time that she and Jayton had lived in Madison. Finally, Evelyn testified that although she had done nothing to prevent contact between Tykila and Jayton, Tykila had not contacted Jayton in any way since December 1994.

¶ 12. Midway through the dispositional hearing, Tykila appeared by telephone. Accordingly, the court offered her the opportunity to be heard. But although Tykila offered brief testimony, she did not say anything regarding Jayton or contest the court's entry of default judgment against her. Rather, she merely gave a one-sentence statement about why she had missed an earlier proceeding. When the court asked if she had anything else to say, Tykila replied "no."

¶ 13. At the close of the testimony, the circuit court considered the evidence before it and reaffirmed its entry of default judgment against Tykila:

At this point then I need to consider the standards, the factors that are set forth in the statutes governing termination of parental rights. I would note that Tykila [S.], the mother, has repeatedly been in default.⁴ The court has given her numerous opportunities,

246 Wis.2d 12

including discharging an entire jury panel at one point so that she could appear in person, even though an order for appearance had gone out. So I'm satisfied that the default is sound.

I'm also satisfied that grounds exist, that being the ground of abandonment, as established through the testimony of . . . Evelyn [R.] today. So grounds exist for the termination of parental rights of Tykila [S.].

Then, after noting that Tykila's abandonment of Jayton provided grounds to terminate Tykila's parental rights to Jayton, the court concluded that it would be in Jayton's best interests to terminate Tykila's parental rights to him so he could be adopted by Evelyn. The court thus entered an order terminating Tykila's parental rights to Jayton and subsequently signed an order granting a petition by Evelyn to adopt Jayton.

¶ 14. Tykila appealed the circuit court's order terminating her parental rights to Jayton. The court of appeals, however, affirmed the order.

¶ 15. Tykila then petitioned this court for review of the court of appeals decision. We granted review.

II

¶ 16. Tykila raises a single issue for review: Did the circuit court err in entering a default judgment on the issue of abandonment without first taking evidence sufficient to support a finding of abandonment by clear and convincing evidence?...