### COURT OF APPEALS DECISION DATED AND FILED September 26, 2024

Samuel A. Christensen Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2024AP1162 Cir. Ct. No. 2023TP2 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

I N RE THE TERMINATION OF PARENTAL RIGHTS TO Y.R.C.Y, A PERSON UNDER THE A GE OF 18:

S TATE OF W ISCONSIN ,
P ETITIONER - R ESPONDENT ,

V . A.M.Y.,

R ESPONDENT - A PPELLANT .

APPEAL from an order of the circuit court for Columbia County:
W. ANDREW VOIGT , Judge. Reversed

.No. 2024AP1162

2 ¶ 1 TAYLOR, J. 1 A.M.Y. appeals an order terminating her parental rights to her biological daughter Y.R.C.Y. She argues that the circuit court erroneously exercised its discretion by granting default judgment against her as to grounds for termination. I conclude that the court erron eously exerc ised its discretion by failing to take evidence sufficient to show that grounds for termination existed prior to granting default judgment, and that the State has failed to show that the error was harmless. Accordingly, I reverse.

BACKGROUND

¶ 2 A.M.Y. gave birth to Y.R.C.Y. on August 20, 2021. Six days later, the child was removed from A.M.Y.’s home and placed in foster care with the child’s maternal grandparents. A CHIPS action was commenced, and in February 2022, the child was adjudica ted to be in need of protection and services

. T he court imposed conditions on the return of the child to A.M.Y

. 2

¶ 3 In March 2023, the State petitioned to terminate A.M.Y.’s parental rights to the child. 3 Involuntary termination of parental rights (“TPR” ) cases follow a “two

- part statutory procedure.” Steven V. v. Kelley H. , 2004 WI 47, ¶24,
271 Wis. 2d 1, 678 N.W.2d 856. “In the first [fact

- finding] , or ‘grounds’ phase of the proceeding, the petitioner must prove by clear and conv incing evidence that

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31(2)( e) (2021

- 22). All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.

2 “CHIPS” is a commonly used acronym for “child in need of protection or se rvices.” Eau Claire Cnty. DHS v. S.E. , 2021 WI 56, ¶1, 397 Wis. 2d 462, 960 N.W.2d 391

. The dispositional order in the CHIPS case was not included in the record for this case.

3 The State also petitioned to terminate the parental rights of Y.R.C.Y.’s b iological father, and his parental rights were ultimately terminated.No. 2024AP1162

3 one or more of the statutorily enumerated grounds for termination of parental rights exist.” Id. ; W IS

. S TAT

. § 48.31(1). If so, the court then proceeds to the second, or “dispositional” phase, in which it decides whether it is in the best interests of the child that the parent’s rights be terminated. Steven V. , 271 Wis. 2d 1, ¶27; W IS

. S TAT

. § 48.426(2). The State’s petition sought to terminate A.M.Y.’s parental rights on two grounds: that A.M.Y. had failed to meet return conditions
and therefore the child was in continuing need of protection or services; and that
A.M.Y. had failed to assume parental responsibility. See W IS

. S TAT

. § 48.415(2)(a) , (6)

. ¶ 4 An initial h earing was set for March 28, 2023. Eight days before the hearing, the circuit court received a l etter from A.M.Y. seeking a continuance to
obtain counsel. In reply, the register of probate sent A.M.Y. a letter directing her
to contact the state public de fender’s office and informing her that she would need to appear in person at the hearing to request a continuance.

¶ 5 At the initial hearing, A.M.Y. did not appear personally or by
counsel. However, she had not yet been formally served with the TPR action

. T he circuit court granted a continuance to allow the State to serve A.M.Y. A.M.Y. was eventually served by publication on May 11, 2023.

¶ 6 At the rescheduled initial hearing on May 19, 2023 , A.M.Y. again did not ap pear personally or by counsel. The circuit court noted that , prior to the hearing, A.M.Y. had called the court asking for more time to obtain counsel. The
State move d for default judgment based on A.M.Y.’s nonappearance, and t he

court entered a default j udgment against A.M.Y. as t o the grounds for termination

. The court did not take any evidence or make a finding that grounds f or termination existed before granting the default judgment

. See Evelyn C.R. v. Tykila S. , 2001No. 2024AP1162

4 WI 110, ¶24, 246 Wis. 2d 1, 629 N.W.2d 768 (prior to granting default as to grounds for termination of parental rights , the court must first take evidence sufficient to show that grounds for termination existed ).

¶ 7 Three days later, counsel was appointed to repr esent A.M.Y. Through counsel, A.M.Y. moved to vacate the default judgment. T he circuit court
denied her motion.

¶ 8 O n January 30, 2024 , t he circuit court held a disposition al hearing. At the hearing, the social worker assigned to the case testified as to the statutory
best interest factors governing disposition under W IS

. S TAT

. § 48.426(3), and the parties presented arguments as to whether termination was in the best interests of
the child. At the conclusion of the hearing, the court granted the petition to terminate A.M.Y.’s parental rights. The court did not address the issue of grounds
for termination in its oral ruling . I n its written order terminating A.M.Y.’s parental ri ghts after the dispositional hearing , however, the court checked boxes indicating that grounds existed for the TPR

. A.M.Y. appeals.

DISCUSSION

¶ 9 A.M.Y. argues, among other things, that the circuit court erroneously exercised its discretion by granting default judgment against her at the
grou nds phase without first taking evidence sufficient to show that grounds forNo. 2024AP1162

5 termination existed

. 4 For the reasons explained below, I agree, and I conclude that this error requires reversal because the State has not shown that the error was harmless.

¶ 10 “ A judicial proceeding terminating parental rights implicates a parent’s fundamental rights,” which include “the parent’ s interest in the companionship, care, custody, and management of his or her child. ” T.M.F. v. Children’s Serv. Soc’y o f Wis. , 112 Wis. 2d 180, 184, 332 N.W.2d 293 (1983). During the grounds phase of a TPR proceeding, “the parent’s rights are paramount.” Evelyn C.R. , 246 Wis. 2d 1, ¶22 . “ To protect these rights from erroneous termination, ” the petitioner must prove that grounds for the termination of parental rights exist by “ clear and convincing evidence .” Id. , see also W IS

. S TAT

. § 48.31(1). This requirement derives both from § 48.31(1) and the Due
Process Clause of the Fourteenth Amen dment to the United States Constitution

. 5 Evelyn C.R. , 246 Wis. 2d 1 , ¶ ¶ 21

- 22

.

4 A.M.Y. also argues that the circuit court’s grant of default was an erroneous exercise of discretion under W IS

. S TAT

. § 805.03, which permits the court to sanction a party’s failure to obey a court order by “mak[ing] such orders in regard to the failure as are just.” In response, the State contends that the court’s grant of default was proper under W IS

. S TAT

. § 806.02, which, among other things, permits a court to grant default judgm ent “if no issue of law or fact has been joined on any claim asserted in a complaint, counterclaim, or cross claim and if the time for joining issue has expired.” Sec. 806.02(1). B ecause I reverse on other grounds , I do not consider whether the court had authority to grant the default under either statute

. See Barrows v. Am erican Fam. Ins. Co. , 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need not address every issue raised by the parties when one issue is dispositive .”).

5 In pertinent part, W IS

. S TAT

. § 48.31(1) states that a “ ‘ fact

- finding hearing’ means a hearing to determine if the allegations in a petition

... to terminate parental rights are proved by clear and convin c ing evidence.” The Due Process Clause of the Fourtee nth Amendment to the United States Constitution provides that no State may “ deprive any person of life, liberty, or property , without due process of law. ” U.S. C ONST

. amend. XIV , § 1

.No. 2024AP1162

6 ¶ 11 Default judgment as to the grounds for termination is available in TPR proceedings. See Steven V. , 271 Wis. 2d 1, ¶32 (the rules of civil procedure generally apply in TPR proceedings, including rules permitting default judgment). “The decision whether to enter a default judgment is a matter within the sound discretion of the circuit court.” Evelyn C.R. , 246 Wis. 2d 1 , ¶18. However,
b efore granting default judgment as to grounds, a court has a “ duty under the
Fourteenth Amendment and [ W IS

. S TAT

. c h .] 48

... to support a finding by clear and convincing evidence” tha t grounds for termination exist. I d. , ¶26. A court erroneously exercises its discretion if it fails to do so

. I d. , ¶19.

¶ 12 Here, t he State does not respond to A.M.Y.’s argument that the circuit court erred by granting default judgment against her without first taking
evidence suff

icient to show that grounds for termination existed

. I take this lack
of response by the State as a con cession that the court erred. See United Coop. v. Frontier FS Coop. , 2007 WI App 197, ¶39, 304 Wis. 2d 750 , 738 N.W.2d 578 ( An appellant’s failure to r espond in its reply brief to argument made in a response brief may be taken as concession. )

. Y.R.C.Y’s g uardian ad litem (“GAL”) submitted a brief in this appeal arguing against reversal , and the GAL expressly
concedes this issue. 6 I therefore assume without deciding that the court erroneously exercised its discretion by failing to take evidence sufficient to support a finding that grounds for termination existe d prior to its grant of the
default judgment under Evelyn C.R. However, such an e rror does not necessarily

6 See W IS

. S TAT

. § 767.407(1), (4) (in this context, a GAL is an attorney appointed by the circuit court to represent a minor child and to advocate for the child’s best interests).No. 2024AP1162

7 require reversal, and may be harmless. 7 See Evelyn C.R. , 246 Wis. 2d 1 , ¶¶27

- 32 (applying a harmless error analysis)

. ¶ 13 A n error requires reversal only if it affect s the “substantial rights of
the party.” W IS

. S TAT

. § 805.18(2). An error affects a party’s substantial rights if there is “a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue.” Evelyn C.R. , 246 Wis. 2d 1, ¶28

. “ If the error at
issu e is not sufficient to undermine the reviewing court ’ s confidence in the outcome of the proceeding, the error is harmless. ” Id. The beneficiary of the error
bears the burden to show that the error was harmless. See State v. Denton , 2009 WI App 78, ¶24, 319 Wis. 2d 718, 768 N.W.2d 250

. ¶ 14 In Evelyn C.R. , the circuit court entered a default judgment at the grounds phase of a TPR proceeding without first taking evidence sufficient to support such a finding. Evelyn C.R. , 246 Wis. 2d 1, ¶ ¶24

- 26

. Although our
supre me court determined that this was an erroneous exercise of discretion, it nonetheless affirmed the termination of parental rights because the record provided a factual basis to support the court’s finding of grounds for terminati on. Id. , ¶32. Our supreme court noted that the circuit court did not enter its order terminating parental rights until after taking testimony which contained sufficient
facts to support a finding that groun ds for termination existed, and that the circuit court expressly reaffirmed its finding that there were grounds for termination after taking this testimony. I d

. , ¶¶33

- 34. Accordingly, u nder the circumstances, the

7 Certain errors are “structural” and are not subject to a harmless error review. See Sta te v. C.L.K. , 2019 WI 14, ¶12, 385 Wis. 2d 418, 922 N.W.2d 807. A structural error “ either affects the entire proceeding, or affects it in an unquantifiable way .” Id. , ¶15. A.M.Y. does not dispute that a harmless error analysis applies to the error at i ssue here, and so I address this issue no further.No. 2024AP1162

8 error did not undermine “confidence in the outcome of the

... proceeding” and
was harmless. Id. , ¶35.

¶ 15 Here, t he State identifies certain testimony by the social worker at the dispositional hearing and asserts that this testimony satisfies the ground of
failure to assume parental responsibility; however , the State does not appear to make any express argument as to how the social worker’s testimony renders the circuit court’s error harmless. Instead, the State appears to instruct this court to search the record to make its argument pursuant to Ev elyn C.R

. T he State does not adequately develop an argument as to why the court’s error was harmless. See
S tate v. Pettit , 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (this court need not address undeveloped arguments); Industrial Risk Insurers v. American Eng’g Testing, Inc. , 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (this court “will not abandon [its] neutrality to develop arguments” for a party).

¶ 16 Even addressing the harmless error argument that the State may
int end to make, this argument is unpersuasive. The ground of failure to assume parental responsibility requires the petitioner to prove that the parent has “not had a substantial parental relationship with the child.” W IS

. S TAT

. § 48.415(6) (a).

“ [S] u bstan tial parental relationship” means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child. In evaluating whether the person has had a substantial parental relationship with the child , the court may consider such factors, including, but not limited to, whether the person has expressed concern for or interest in the support, care or well

- being of the child, whether the person has neglected or refused to provide care or support for the c hild and whether, with respect to a person who is or may be the father of the child, the person has expressed concern for or interest in the support, care or well

- being of the mother during her pregnancy.No. 2024AP1162

9 Sec. 48.415(6) (b ). This statutory language re quire s the fact finder to “ look to the totality

- of

- the

- circumstances to determine if a parent has assumed parental responsibility,” considering “ the circumstances that have occurred over the entirety of the child’ s life ” within the relevant time period. Tammy W

- G

. v. Jacob T. , 2 011 WI 30, ¶22, 333 Wis. 2d 273, 797 N.W.2d 854.

¶ 17 The only facts identified by the State in its briefing on appeal to support the failure to assume parental responsibility ground are that Y.R.C.Y. was
removed from A.M. Y.’s care when Y.R.C.Y. was six days old, and that Y.R.C.Y. refers to her foster parent as “mommy” and looks to her for comfort. 8 It is not apparent how these facts would constitute clear and convincing evidence of failure to assume parental responsibilit y under the required totalit y of the circumstances analysis. Moreover, as noted above , the circuit court in Evelyn C.R. expressly
reaffirmed its finding that grounds for termination existed in light of the evidence present e d at the dispositional hearing, and o ur supreme court considered this additional procedural step to be significant in determining that the error was
harmless. Evelyn C.R. , 246 Wis. 2d 1, ¶¶33

- 34. H ere, the court did not
reconsider at the dispositional hearing whether grounds for termin ation existed . I n fact, it does not appear that the court ever meaningfully considered the issue of grounds for termination throughout the co urse of this proceeding

— the only time it
addressed that issue was when it checked boxes indicating that grounds ex isted in its written order terminating A.M.Y.’s parental rights. 9

8 The State also notes that the social worker testified that Y.R.C.Y. did not have a substantial relationship with A.M.Y.; however, this is a mere conclusory statement

.

9 The circuit court’s written order terminating A.M.Y.’s parental rights contains several concerning errors. I n addition to checking two boxes corresponding to the two g rounds alleged in the petition ( that the child was in continuing need of protection and services and that A.M.Y

. (continued)No. 2024AP1162

10 ¶ 18 In the absence of any argument from the State as to why the circuit court’s error was harmless under the analysis set forth in Evelyn C.R. , or under any other authority , I cannot say that the State has shown that there was not a “reasonable possibility that the error contributed to the outcome of the action or proceeding at issue.” Id. , ¶2 8

. ¶ 19 The GAL, unlike the State, expressly makes a harmless error argument; however, this argument is cursory and cites no specific facts. The GAL contends that the circuit court’s failure to take sufficient evidence prior to granting default was harmless because “the social worker testified at length to the facts
need ed to support the allegations in the petition” at the dispositional hearing. However, the GAL cites no specific testimony by the social worker, and does not explain how any such testimony would support any grounds for termination. I
decline to address th e GAL’s undeveloped argument

. See Pettit , 171 Wis. 2d at 646

. ¶ 20 Accordingly , because I assume without deciding that the circuit

court erroneously exercised its discretion in fai l ing to make findings as to grounds
for termination prior to issuing a default judgment, and neither the State nor the
GAL have shown that the court’s error was harmless , I reverse.

fai led to assume parental responsibility ), the court also checked a box on the order indicating that a ground for termination not alleged in the petition, abandonment, existed. The court also checked a box indicating that A.M.Y. was “found in default” and “[ a]n evidentiary hearing was conducted establishing grounds for termination of parental rights,” but no such hearing was ever held.No. 2024AP1162

11 CONCLUSION

¶ 21 For all of these reasons, I reverse the circuit court’s order terminating A.M.Y.’s parental rights to Y.R.C.Y.

By the Court.

— Order reversed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)4.