May 01, 2016

Court Can Only Enter Default Judgment in Termination of Parental Rights Proceeding After Agency Meets Statutory Requirements

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re HLL, 2016 WL 1435368 (Wyo.).

Unlike civil cases in which no proof is required before a judgment by default can be entered against a nondefending or appearing party, the juvenile court can only enter a default judgment in a termination of parental rights proceeding when the child welfare agency establishes the required statutory grounds for termination by clear and convincing evidence, regardless of whether the parent appears.

Mother had a long history with child welfare agencies in two states and only retained parental rights to two of her six children. The children, HLL and KGS, were taken into state custody on an abuse and neglect petition after their mother became intoxicated and beat a girlfriend with a baseball bat. HLL and KGS were inside the home during the beating, which occurred outside. Mother told the children to cover blood in the snow, clean blood off the bat, and support a false alibi she created. Mother was convicted of assault and battery for the attack and received a sentence of three-to-six years in prison. 

The child welfare agency filed a petition for termination of the mother’s parental rights. She was personally served the petition while incarcerated but failed to timely answer, plead, or otherwise defend. The trial court set the case for a default hearing. Before that hearing, the mother filed a document that the parties treated as a motion to set aside the default and also requested court-appointed counsel. Her motion was heard on the date set for the default hearing. Mother attended by phone without an attorney. The court heard mother’s reasons for failing to answer, but did not find them convincing. It determined that mother failed to present a prima facie case of good cause to set aside the default. However, the court appointed mother an attorney and rescheduled the default hearing.

 At that hearing, the agency presented testimony and evidence intended to establish clearly and convincingly that mother’s parental rights to HLL and KSG should be terminated. Mother’s appointed counsel gave an opening statement, cross-examined the agency’s witnesses, made objections, and delivered a closing argument. The court found the agency met its burden and entered an order terminating her rights to HLL and KSG.

Mother argued on appeal that the rule governing entry of default and default judgment does not apply in a termination of parental rights proceeding because it is more like a criminal case than a civil one. The appellate court, however, determined the plain language of the termination statute clearly states the Wyoming Rules of Civil Procedure apply to termination proceedings. Case law also established termination of parental rights as a civil, not a criminal, proceeding. 

In a general civil case, the rules provide a procedure to enter judgment against a party without considering  the merits when there is a competent showing that the offending party failed to plead or defend the case. But the rule governing default judgments and the termination statutes differ somewhat. Unlike general civil matters, in which the judge has discretion to hold a hearing before entering judgment by default, the termination statute states, “[w]hen a petition is filed and presented to the judge, the judge shall set the petition for hearing” (emphasis added).

Thus, the court in a termination of parental rights proceeding can only proceed to disposition on the default when the agency establishes the required statutory factors. The court must hold the required hearing and the agency must present clear and convincing evidence of the grounds to terminate parental rights. The court interpreted the statute to require this procedure, regardless of whether the parent does or does not appear at the hearing, in order to satisfy due process requirements that safeguard a parent’s fundamental liberty interest in maintaining a relationship with his or her child.