Defaulting Parental Rights: a Harsh, Drastic (and Erroneous) Sanction
In re TW (ICA January 31, 2011)
Background. The Department of Human Services filed a petition for temporary foster custody over TW and away from the child's mother on the grounds that the mother admitted to leaving her eight-month-old child with a seventeen year old babysitter from Friday afternoon to Sunday morning so that the mother could finish her community service work. The DHS concluded that the seventeen year old was not an appropriate caregiver. The police took away the child and put the child in the custody of DHS.
The mother appeared with counsel at the hearing on the petition and demanded a trial. The family court set a date for trial. At a later hearing, the mother presented evidence in support of her opposition to the petition. At the end of the trial, the family court sustained the petition and ordered the implementation of a family service plan. The family court ordered the mother to appear for the review hearing roughly six months later. At that review hearing, the mother appeared and DHS noted that she had complied with her end of the terms and conditions of the family service plan. The family court ordered that the plan be continued for another four months to March 19, 2009. The family court continued the review hearing again on June 9, and November 17, 2009. The mother appeared for every hearing. The review was continued to December 22, 2009.
On Dec. 16, DHS filed a motion for permanent custody of the child. The hearing on the motion was set prior to the fourth review hearing. A copy of the motion sent through certified mail to the mother's attorney. The mother did not appear at the December 22, 2009 hearing. DHS requested that the mother be defaulted and that the family court grant the motion for permanent custody. The mother's counsel objected. Counsel told the family court, "I don't know where [she] is. She's usually here early. She's been coming to every hearing. I did not get the [motion], so I did not send it to her." The family court defaulted the mother and granted the motion, and awarded DHS permanent custody. On January 7, 2010, the mother filed a motion to set aside the default. The family court denied the motion. The mother appealed.
Default Judgment: the Ultimate Sanction. The "drastic sanctions of dismissal and default judgment are authorized only in extreme circumstances." W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw. App. 354, 361, 802 P.2d 1203, 1207 (1990). They are typically not favored "because they do not afford parties an opportunity to litigate claims or defenses on the merits." In re Genesys Data Technologies, Inc., 95 Hawai'i 33, 40, 18 P.3d 895, 902 (2001). The ICA analogized this default sanction with dismissals as a sanction for discovery violations. In that case, dismissal is "appropriate only as a last resort, or when less drastic sanctions would not ensure compliance with a court's orders[,]" Long v. Long, 101 Hawai'i 400, 405-06, 69 P.3d 528, 533-34 (App. 2003), and reserved for "willful or contemptuous or otherwise opprobrious behavior." Weinberg v. Dickson-Weinberg, 123 Hawai'i 68, 77, 229 P.3d 1133, 1142 (2010). It is also based on five factors: "(1) the public's interest in the expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party moving for sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Id. at 71, 229 P.3d at 1136.
There's more to life than Money . . . The ICA noted that sanctions and default judgment as a sanction for misconduct or noncompliance usually arise out of civil and divorce actions involving money and property. Here, however, the issue relates to a mother's parental rights so, according to the ICA, the "[c]oncerns over the harshness of the severe sanction of default . . . are heightened[.]" Parents have "a substantive liberty interest in care, custody, and control of their children protected by the due process clause" in the Hawai'i Constitution. In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458. These rights "cannot be denied without an opportunity for [the parents] to be heard in a meaningful time and in a meaningful manner." Id. After all, "parental termination decrees are among the most severe forms of state action[.]" M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996).
Default Judgment was an Abuse of Discretion. The ICA held that the family court abused its discretion in granting DHS's motion for default judgment. The mother appeared in every court hearing but one during an 18-month period. She challenged the pleadings against her and presented evidence at trial. According to the ICA, the hearing she did miss was not a hearing to determine whether she was a fit parent. It was a pre-hearing to determine a date for the evidentiary hearing on the motion for custody. The default, according to the ICA, was "a harsh and drastic sanction of default . . . based on [a] single non-appearance." As a result, she lost the care, custody, and control of her child without an opportunity to litigate the issue. The case was remanded without hearing the rest of the mother's points of error.
A Bright Line Rule? The ICA held that the family court abused its discretion in granting a default against a parent and terminating her rights to her child based on a single non-appearance in court. Why? At first, the ICA analogized this default to defaults based on a violation of discovery rules. It even outlined the five factors to be considered in weighing what kind of sanction for discovery violations would be "commensurate with the offense[.]" Weinberg v. Dicksen-Weinberg, 123 Hawai'i at 77, 229 P.3d at 1142.
The ICA did not apply the five Weinberg factors. Weinberg and almost all of the cases addressing dismissal sanctions for discovery violations revolved around "money and property." This, on the other hand, dealt with a very important fundamental interest: a parent's right to conceive, raise, and control his or her child. This right "cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner." In re Doe, 99 Hawai'i at 533, 57 P.3d at 458. Defaulting the mother and granting DHS's motion for custody without a hearing divested the mother of her "parental rights . . . without affording [her] the opportunity to contest the DHS's" motion. That--and not the five factor analysis--was the ICA's basis for reversing the family court. This implies that fundamental rights should not be defaulted and that the five factors are reserved for the majority of civil cases--litigation over "money and property."
Money and Property: a side note. The conjunction in the ICA's phrase "money and property" is troublesome. As Justice John Paul Stevens wrote, "Money is property; it is not speech." Nixon v. Shrink Missouri Gov't, 528 U.S. 377 (2000) (Stevens, J., concurring.).