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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2024AP1162 Cir. Ct. No. 2023TP2

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN RE THE TERMINATION OF PARENTAL RIGHTS TO Y.R.C.Y,

A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

 PETITIONER-RESPONDENT,

 V.

A.M.Y.,

 RESPONDENT-APPELLANT.

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 erroneously exercised 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 adjudicated to be in need of protection and services. 

The 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.3Involuntary 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 convincing evidence that 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 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 services.” 

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 biological 

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.; WIS. STAT. § 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; WIS. STAT. § 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 WIS. STAT.

§ 48.415(2)(a), (6). 

¶4 An initial hearing was set for March 28, 2023. Eight days before the 

hearing, the circuit court received a letter 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 defender’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.

The 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 appear 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 moved for default judgment based on A.M.Y.’s nonappearance, and the 

court entered a default judgment against A.M.Y. as to the grounds for termination.

The court did not take any evidence or make a finding that grounds for termination 

existed before granting the default judgment. See Evelyn C.R. v. Tykila S., 2001 
No. 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 represent A.M.Y. 

Through counsel, A.M.Y. moved to vacate the default judgment. The circuit court 

denied her motion. 

¶8 On January 30, 2024, the circuit court held a dispositional hearing. 

At the hearing, the social worker assigned to the case testified as to the statutory

best interest factors governing disposition under WIS. STAT. § 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. In its written order terminating A.M.Y.’s 

parental rights 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 

grounds phase without first taking evidence sufficient to show that grounds for 
No. 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 of 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 WIS.

STAT. § 48.31(1). This requirement derives both from § 48.31(1) and the Due 

Process Clause of the Fourteenth Amendment 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 WIS. STAT. § 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 WIS. STAT. § 806.02, which, 

among other things, permits a court to grant default judgment “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). Because I reverse on other grounds, I do not consider 

whether the court had authority to grant the default under either statute. See Barrows v. 

American 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, WIS. STAT. § 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 convincing evidence.” The Due Process Clause of the Fourteenth 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. CONST. 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, 

before granting default judgment as to grounds, a court has a “duty under the 

Fourteenth Amendment and [WIS. STAT. ch.] 48 ... to support a finding by clear 

and convincing evidence” that grounds for termination exist. Id., ¶26. A court

erroneously exercises its discretion if it fails to do so. Id., ¶19.

¶12 Here, the 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 sufficient to show that grounds for termination existed. I take this lack 

of response by the State as a concession 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 respond in its reply brief to argument made in a response 

brief may be taken as concession.). Y.R.C.Y’s guardian ad litem (“GAL”) 

submitted a brief in this appeal arguing against reversal, and the GAL expressly 

concedes this issue.6I 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 existed prior to its grant of the

default judgment under Evelyn C.R. However, such an error does not necessarily 

 

6

 See WIS. STAT. § 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 An error requires reversal only if it affects the “substantial rights of 

the party.” WIS. STAT. § 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 

issue 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 

supreme 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 termination. 

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 grounds for termination existed, and that the circuit

court expressly reaffirmed its finding that there were grounds for termination after 

taking this testimony. Id., ¶¶33-34. Accordingly, under the circumstances, the 

 

7

 Certain errors are “structural” and are not subject to a harmless error review. See State 

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 issue 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, the 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 Evelyn C.R. The State does 

not adequately develop an argument as to why the court’s error was harmless. See 

State 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 

intend 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.” WIS. STAT. § 48.415(6)(a). 

“[S]ubstantial 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 child 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 requires 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., 2011 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 responsibility under the required totality 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 

presented at the dispositional hearing, and our 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. Here, the court did not 

reconsider at the dispositional hearing whether grounds for termination existed. In

fact, it does not appear that the court ever meaningfully considered the issue of 

grounds for termination throughout the course of this proceeding—the only time it 

addressed that issue was when it checked boxes indicating that grounds existed 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. In addition to checking two boxes corresponding to the two grounds 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., ¶28.

¶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 

needed 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 the 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 failing 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.

 

failed 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

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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 WIS. STAT.

RULE 809.23(1)(b)4.