By: John J. DiMotto
In Wisconsin, there are two types of termination of parental rights (TPR) cases. First, there can be a government commenced Involuntary TPR action brought by a County District Attorney’s Office or by a County Department of Human Services against a parent who has abused or neglected a child. Second, there can be a private Voluntary TPR action brought by a parent who makes the decision during pregnancy or shortly after the birth of the child to give the child up for adoption.
All TPR actions are closed to the public under 48.299 and all records of the proceedings are subject to confidentiality under 48.78. Furthermore, because of the extremely sensitive nature of juvenile court proceedings, including TPR and Adoption cases, any person who divulges any information which would identify the child, the expectant mother or the family involved in any proceeding shall be subject to contempt proceedings under Chapter 785.
INVOLUNTARY TPR ACTION
An involuntary TPR action is a government-endorsed petition that is commenced by a County District Attorney or County Department of Human Services. This case is commenced when:
1. **A parent has abused or neglected a child;
2. **A County Child Protective Services unit has removed a child from the parental home due to the abuse or neglect;
3. **A court approves the removal and detention of a child and placement in a foster home, group home or home of a relative;
4. **A court enters an order in a CHIPS (Child in Need of Protection or Services) case setting forth “conditions of return” that a parent must meet in order for the child to be returned to the parent;
5. **Fifteen months go by and the parent has not met the “conditions of return.”
If an involuntary TPR action is commenced because the parent does not meet the conditions of return, the parent has the right to contest the action. The parent is entitled to a jury trial or a court trial where a jury or a judge decides whether the DA or the attorney for the County Department of Human Services has proven by clear, convincing and satisfactory evidence the grounds alleged in the TPR petition. The three most common grounds for termination are “Abandonment” under 48.415(1); “Child in Continuing Need of Protection or Services under 48.415(2); and “Failure to Assume Parental Responsibility” under 48.415(6).
If grounds are proven, the court will then conduct a Dispositional Hearing where the judge alone decides whether or not to terminate parental rights There is no right to a jury in the Dispositional Phase. The decision of the court is based on what the judge believes is in the best interest of the child based on all the information brought to the court’s attention.
If a parent does not come to court to contest the grounds alleged in the involuntary petition, the court can take action against the parent. The court can enter a “default judgment” against the parent, proceed with a Dispositional Hearing in the absence of the parent and terminate parental rights. If parental rights are terminated, the child can then be adopted.
VOLUNTARY TPR ACTION
A voluntary TPR action is a private action commenced by a parent who has decided to terminate parental rights. It is usually a circumstance where a woman during her pregnancy makes the decision to give the child up for adoption. She must contact an adoption agency and work with the agency to find a suitable couple or person to adopt the child. Usually, the mother selects the couple or person whom she wants to adopt the child. The child can be voluntarily placed with a suitable “adoptive couple” or “adoptive person” under a Voluntary Placement Agreement, but the agreement clearly states that the child may be returned to the birth parent at any time upon request of the parent prior to the termination of parental rights.
When a private, voluntary TPR action is filed by a parent, it is necessary for the court to conduct a hearing with the parent to determine whether the decision to terminate parental rights has been made freely, voluntarily, knowingly and intelligently and that the parent has not been coerced in any way. The parent must come to court to answer the court’s questions.
It is not unusual for a parent to have second thoughts or some hesitation. Under those circumstances, the attorney for the “adoptive couple” or “adoptive person” usually asks the court for an adjournment to procure the appearance of the parent so the case can continue. The court is willing to accommodate such requests for adjournments until the parent is ready to make the final decision.
If the parent wishes to speak with an attorney about the decision, the parent has a right to hire an attorney. If the parent is indigent, the court oftentimes will appoint a lawyer at county expense to consult with the parent. The cost is usually minimal – in the range of $300. This is done because Chapter 48 makes clear, that the court must ensure that the decision made by the parent is truly voluntary.
If the parent absolutely refuses to come to court or if the parent does come to court but ultimately decides not to terminate parental rights, the court must dismiss the action. The court has no other choice and, in particular does not have the power to convert a private, voluntary TPR action into an involuntary action. Said otherwise, the court has no power to involuntarily terminate a parent’s rights in a private, voluntary TPR action.
In those cases where the parent decides not to terminate parental rights, the child must be returned to the parent. When that happens, it is very sad, even devastating, for the “adoptive couple” or “adoptive person.” They feel bereft and upset because they have established a bond with the child and may also have invested substantial amounts of money in the adoptive process which they will not recoup. Oftentimes they are very angry and cannot understand why the court seems deferential to the parent’s rights and why the court must consider the emotional state of the parent as it bears on voluntary nature of the decision to terminate parental rights It may be hard to accept that in a private, voluntary TPR action, the court has no power to force a parent into terminating parental rights. However, it must be the parent’s decision and it must be a completely free, voluntary, intelligent and knowing decision made without reservation.
In a governmental, involuntary TPR action, the case is controlled by the governmental agency bringing the action. The feelings of the parent do not govern how the case is processed. If a person fails to come to court in an involuntary TPR action, the court can enter a default judgment and proceed to terminate parental rights even without the parent being in court.
In contrast, in a private, voluntary TPR action, the case is controlled by the parent bringing the action. If the parent chooses to follow through with the termination, the court must be satisfied that the decision has been made freely, voluntarily, knowingly, intelligently and with a full understanding of the impact of and the alternatives to termination. If the parent has reservations or deliberately chooses not to follow through with the termination, the court has no discretion and must dismiss the case.