On Point

Defense Win: In TPR rife with error, COA holds that court erroneously granted default judgment and clarifies ICWA voluntary termination procedure

Sheboygan County DH&HS v. Z.N., 2025AP1817, 11/7/25, District II (ineligible for publication); case activity

In an unpublished but citable case, COA clarifies there is no requirement that respondent appear in person for a voluntary termination of parental rights in an ICWA case and reverses the circuit court’s default finding.

Sheboygan County filed a TPR petition against Zora, who is a member of the Sault Saint Marie Tribe of Chippewa Indians, with respect to one of her minor children, Luther. (¶¶4-5). After the petition was filed, Zora relocated from Wisconsin to Michigan, where the father of one of her other children was attending university. (¶6). Two Zoom appearances followed and, at each hearing, the court was informed that Zora intended to voluntarily terminate her parental rights. (Id.). Prior to a scheduled dispositional hearing, Zora filed a lengthy document consenting to the termination of her parental rights and confirming the knowing, intelligent, and voluntary nature of her decision. (¶7.).

At the ensuing dispositional hearing, however, the court expressed dissatisfaction with Zora’s ongoing participation via Zoom and further expressed its belief that, because this was an ICWA case, Zora was required to be present in person so she could sign a court form, IW-1637, in the presence of the judge. (¶8). Other than its reference to the court form, the court did not cite any statutory authority for this legal conclusion. (Id.). Zora’s attorney informed the court that an in-person appearance would be difficult for Zora, as she lived four hours away. (¶9). Because Zora was scheduled to appear in another Sheboygan County matter the following month, the court scheduled the matter for the day after that other TPR matter was scheduled to conclude. (Id.). The court then signed an order to appear containing default warnings. (Id.).

Prior to the scheduled hearing, however, counsel filed a lengthy submission explaining that Zora would no longer be able to attend the hearing as she did not have transportation. (¶10). Counsel proposed numerous other options before ultimately requesting an adjournment once the other Sheboygan County matter was also adjourned. (Id.). On the day of the previously-scheduled hearing, the court questioned Zora’s inability to appear in person. (¶11). Although counsel made a detailed record of Zora’s impediments, the court responded, “Well, there is public transportation.” (Id.). Counsel for DH&HS expressed the agency’s intent to file a motion for default. (¶12). Although the court did not believe a formal motion was required, DH&HS then filed a motion for a default judgment after the hearing. (¶13). Zora’s counsel continued their zealous advocacy, however, and filed a memorandum requesting, once again, that Zora be allowed to terminate her rights voluntarily over Zoom. (¶14).

At the ensuing hearing, the court held fast to its position that Zora was required to appear in person in order to voluntarily terminate her rights. (¶15). Although counsel responded by citing Mable K. and explaining the difficulties Zora faced in returning to Sheboygan for court, the court was unpersuaded and found Zora in default. (¶16). Notably, the court did not hear any testimony as to grounds prior to entering the default order. (Id.). The court then heard prove-up at the dispositional hearing and, in a brief oral ruling, terminated Zora’s rights. (¶20). COA address the following issues on appeal:

The Court Erroneously Exercised its Discretion by Entering a Default Order 

Here, COA focuses on the language of § 805.03, which states that a court confronted with a failure to comply with a court order may issue subsequent orders, including an order for default, “as are just.” (¶34). The Wisconsin Supreme Court emphasized the statute’s focus on the word “just” in Mable K. (Id.). Thus, in order for a default order to be “just,” “the non-complying party must act ‘egregiously or in bad faith.” (Id.). Even though the standard of review requires affirmance if “there is a reasonable basis” for the court’s conclusions, here, COA finds that this standard of review does not rescue the circuit court’s default order:

Having reviewed the specific conduct at issue and the Record as a whole, this court concludes there is no reasonable support for the circuit court’s finding that Zora’s conduct in failing to appear in person for the February 19th hearing, contrary to the circuit court’s order requiring her to do so, amounted to bad faith or egregious conduct under the circumstances present here.

(¶36). Instead, the record supports Zora, as it shows her continuous engagement with the process, willingness to participate, and ongoing efforts to comply with the court’s order despite the significant obstacles in her path. Thus, “the Record unquestionably belies the circuit court’s apparent conclusion […] that Zora’s reason for not being able to attend in person as ordered essentially amounted to Zora simply ‘believing she should never be expected to be in court, in person’ ‘because she lives three and a half or three hours and forty-five minutes away.'” (¶39). In a footnote, COA therefore calls out the court’s “indifferent” response to Zora’s situation, as evidenced by its unreasonable suggestion that Zora could avail herself of public transportation. (¶37). And, because an involuntary termination order carries consequences which could have been avoided if Zora was permitted to voluntarily terminate, COA concludes the error is not harmless. (¶40). Accordingly, the default order is reversed.

Default Order Prior to Grounds

COA also criticizes the circuit court for granting the default order before establishing grounds for termination, which is a well-settled procedural requirement in these cases. (¶41). This is also an erroneous exercise of discretion, although it was cured by the testimony presented at the dispositional hearing. (¶42).

ICWA Does Not Mandate an In-Person Appearance Under these Circumstances

Although the court did not engage with the statutes, COA identifies the relevant source of the court’s decision in the text of both ICWA and WICWA, both of which require that a voluntary consent to a termination of parental rights be in writing “recorded before a judge.”  (¶46). Thus, these statutes “unambiguously require that the voluntary consent to termination of parental rights involving an Indian child be executed in writing.” (¶49).

COA ultimately, concludes, however, that the “before a judge” language is ambiguous. (¶50). COA ultimately holds that “requiring only that the written execution occur visibly–not physically–in the circuit court’s presence is the more reasonable interpretation. (¶51). COA finds support for that conclusion in its analysis of a tribal law opinion cited by counsel, which appears to contemplate this very situation and which ultimately concludes physical presence is not required. (¶53). COA also finds support in § 48.41(2), which does not require a physical appearance in a non-ICWA case involving a voluntary termination if it would be “difficult or impossible for the parent to appear in person.” (¶54). COA holds that it would be unreasonable for the statutes to “provide for greater flexibility for parents of non-Indian children seeking to voluntarily consent to the termination of their parental rights than to parents of Indian children seeking to voluntarily consent […] particularly given the consequences of an involuntary termination of parental rights on subsequent cases.” (¶55). Moreover, the legislature has never expressly stated that a parent must be in person under these circumstances, and that legislative silence is also persuasive. (Id.). Accordingly, COA holds that if Zora still wishes to voluntarily terminate on remand, she should be permitted to do so via Zoom. (Id.).