By John DiMotto
After 20 years as a circuit court judge in Milwaukee County, I have taken an assignment at our Children's Court Center and I am serving as one of the two full time Termination of Parental Rights (TPR) judges in Milwaukee County. I have the honor of serving along with Judge Christopher Foley who is know statewide for being the expert in these types of cases. Today, I am being a series on the law and procedure governing TPR cases.
One of the most fundamental rights any person has is to be a parent. In the case of Steven V. v. Kelly H., 271 Wis.2d 1 (2004), the Wisconsin Supreme Court reiterated the overriding principle that a parent's interest in the parent-child relationship and in the care, custody and management of a child is recognized as a fundamental liberty interest protected by the 14th Amendment to the United States Constitution. The Court further recognized that the termination of parental rights is very consequential in that it permanently destroys all legal recognition of the parental relationship. The "stakes" are so high in TPR cases that every reasonable effort must be made to keep a family intact before the parent-child relationship may be forever severed.
A TPR generally occurs in one of two ways. First, parents may voluntarily seek to have their rights terminated. Second, the State can bring an action to seek the involuntary termination of rights.
With respect to the involuntary petition to TPR, grounds must be established by clear, convincing and satisfactory evidence in a "fact finding" phase. There are thirteen different grounds upon which a TPR action can be based. The rules of evidence are in full force and effect during this phase. This phase can be a trial to the court or a jury trial. If the burden of proof is met, the court will then conduct a "dispositional phase" where the court alone determines whether there is clear, convincing and satisfactory evidence to warrant the TPR. The fact that grounds are found to exist is not dispositive of the outcome. The standard in the dispositional phase is Best Interest of the Child (BIC). In this phase, the rules of evidence are not binding. It is also important to note, that given the importance of the issues in a TPR case there are restrictive timelines that apply so these cases can be adjudicated in a timely manner, although the deadlines can be extended for good cause.
In a TPR case not only is the petitioner, usually the State, represented by counsel, but a guardian ad litem (GAL) is appointed to represent the best interest of the child and each parent is entitled to counsel. Also, if the child is 12 years of age or older, the child is entitled to his or her own counsel in addition to the involvement of a GAL. Furthermore, these proceedings are so sensitive that these hearings are closed to the public.
In my next blog, I will take an in depth look at the various grounds that can be the basis for a TPR case.