Monday, August 16, 2010

Termination of Parental Rights Law in Wisconsin -- An Overview

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.

38 comments:

  1. Judge DiMotto,

    While being a parent is a "fundemental right", in my opinion, greater weight should be given to the BIC. The fundemental right of every child is to be given the best opportunities possible to live in a nurturing, caring, stable and productive environment in order to become the best possible person they can be. It's disconcerting that more of the law addresses the parent's rights rather than the child's.

    When a parent is not involved in anyway, shape or form in a child's life for nearly seven years (for example) and only appears when notified of an involuntary termination proceeding to "claim they love the child" it is emotionally and psychologically damaging for a child to reintroduce the absent parent into the child's life. I know, I speak from experience and am going through a TPR case as I type (not in Milwaukee county). The third way a TPR can be filed is by a biological parent, rare, but it does occur.

    I hope that in your new assignment you will be instrumental in holding absent parents accountable for their lack of parenting and always, always, always, consider what would happen to the child if the parent is reintroduced into the child's life.

    The courts should give greater weight to children than parents. Being a parent is a duty, responsibility and labor of love, not simply a legal right. Appropriate parenting raises productive citizens...inappropriate parenting is the root of most of society's problems.

    When a person fails to meet the standards of being a good parent, and that is proven in the fact finding phase, that person throws away his/her rights through neglect. The focus, as you state above, should be in the BIC.

    I hope to see some distinct changes in the language of the laws related to TPR cases. I hope you will be instrumental in your rulings in such cases.

    Michelle F.

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  2. http://www.nccpr.org/reports/censoredinmilwaukee.pdf

    The road to hell has inadvertently been paved with good intentions since 1998.

    please consider this video
    http://www.youtube.com/watch?v=K1HjVU-UIQU

    i hope to see some distinct changes in the allowance of CPS to unabashedly
    railroad their morally offensive agenda under the false pretense of BIC.

    im not referring to clear cut abuse or neglect cases.
    its the ones in the grey area that involve taking away children with no true allegations and evidence of abuse or neglect, just because they have the power to pull a fast one.
    meanwhile the parents are panic and grief stricken and now hung up in the court system running around trying to accomplish their laundry list of conditions and stopping their entire family life and putting a wedge in maternal bonds to use against them later until the time limit is up. To live it for one moment is your worst nightmare.

    the bureau deliberately drags cases out to the TPR phase. They make empty promises and never ever give parents positve credit where its due if at all possible.
    but how would a shell shocked parent realize this, they are meant to be helping not hurting right? they just want to make sure you are a loving adequate parent right? they give more scruitiny to parents in the system than potential adoptive sources or those seeking foster liscenses.

    by the time someone in this situation realizes the enemy has abducted their child and never had any intention of giving them back, its already too late for they have been had. they submitted themselves to the authority and that entity is bent on destruction. The parents are so emotionally abused by the bureau and lives are so disheveled by the system its no wonder they could claim to have grounds. The parents have to go to grief counseling for their own child who is being held away from them by red tape, which is the most sickening tragedy of all.
    the children are the innocent bystanders of the rape and plunder of their own family.

    just because there is evidence of grounds does not mean it should happen. the blessing of children should be priceless, not something bought or earned through the system, especially if no harm was ever suffered and being at risk of suffering now and in the future is purely speculation if there is no evidence of it in the past.

    TPR is the equivalent to the death penalty. you do not put someone on death row unless it is a particularly heinous crime. it is a punishment for an extreme human rights violation, or lack of regard to such. Not for qualms about lifestyle or conditions met or income. Lets not redistribute parents flesh and blood to those in a higher income bracket because they couldn't afford a paid attorney to stop this dissecting of human lives. its these cases that are falling through the ever expanding cracks of morality and further destroying the nations right and conscience of the endangered natural family unit.

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  3. Amen to the statement above. I am involved in this abusive cycle by CPS to now the TPR date. It has been a nightmare trying to prove the unprovable.

    I am losing my child because of time of great family upheaval which left child and myself fighting to start a new life.

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  4. i have been in your court as a foster parent and thing's that are done are between you and the bocw the parent the lawyer's but when you ask if we have any thing to say it seem's like you do not lisen i know my many try's to get the bocw to lisen have gone unheard our dismissed you are a very good judge but you give parents who shouldn't get more time to much time my foster child has been out of home for over 20 months he was taken 9/9/09 and your giving his parent more time how much time is to much time you need to know when to say your time is up and let the tpr go thou no one can tell you how to do your job but lisen to you for over 8 months saing the same thing over and over and not being heard by you our bocw is trying

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  5. My stepsons birth mother approached me about wanting to terminate her rights. I know that a GAL must be appointed, who would pay for this? Also, if I do not plan to adopt right away can she still terminate her rights? I know that you can not give legal advice, but I am seeking some further information. When I called the county and identifed myself as the stepmother the person I spoke with got rather snippy and short with me.

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    Replies
    1. Yes the mother can terminate her parental right leaving you to raise and support a child that is not yours nor your girlfriend/wife. I know this from first hand experience. Do NOT let them tell you it cant happen, it does, i have seen it and then you are supporting other people's kids

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  6. You might want to call the Milwaukee County District Attorneys office at the Children's Court Center and ask to speak with an Assistant District Attorney who handles TPR cases to discuss your circumstances. You could also contact the Milwaukee Bar Association lawyer referral service to speak with a lawyer who does stepparent adoptions.

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  7. I want to address the anonymous responder of Sept 27...

    As a foster parent I can tell you that I and my family have had and are subject to more scrutany then Biological Parents. I have had background checks, been fingerprinted, my income taxes are handed over, my friends are question about me and my relationship with my husband, I have credit checks, I have to hand over proof of insurance, I had to give them a copy of my deed, they verify my job. I'm under the microscope way more then the biological parent. They just have to follow a case plan which usually only requires them to show they have income and a place to live for 3 months as well as other conditions.

    The thing with TPR's is it doesn't sneak up on these parents...they are told about it at the 6 month permenancy plan review and at the 12 permenancy plan review..if you can't show significant progress to your case plan in 12 months what are you doing? They give parents referrals to everything..mental health, ADOA, parenting, budgeting, housing, job skills and they get all of this at no charge all to help save the parental bond.

    But lets talk about the child...the one that has the right to a safe home and stable parenting. These kids are subjected to missed visitation when their parents just don't show up. They don't want to participate in activities because they don't know where they will be in the next few months. They don't get to live a "normal" life. These children deserve some permenancy and that is what a TPR does, it enables them to find a forever home that will give them a loving, stable, caring environment.

    I have to agree will Michelle though abot preference being given to the parents. The courts and CPS disregard the best interest of the child because parenting is a fundemental right.

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  8. We are in a situation right now where we met a mother who wanted to place her child for adoption. She has stalled now for the last 3 weeks in making a decision and nobody can get a hold of her. The agency has tried relentlessly to contact her to no avail. In the meantime, her baby sits in foster care with no contact from her or the father. So here is my family waiting with open arms for this baby while his biological parents are MIA. And what will happen to this child? He'll sit in foster care while the parents are given God knows how long to get their act together. Who wants to take the risk of adding this child to their family only to have to potentially hand him back to deadbeat parents? There needs to be better laws for infants so they don't lose that first year of life and bonding with a parent that goes with it.

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  9. I would like the CPS looked at and their words not held as gold they should have real proof like time and date samped pictures of said adbuse/neglect/lack of food. Not just their word becuse I believe they are riping apart good parents from their children! Their source should be more reliable than the ex husbend/boyfiend/ex girlfriend/ex wife. It should be cocniderd that the ex.s may be mad at the parent in question and call for revenge>

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  10. I would like to address the foster parent's comments. First of all CPS does stall. They wait months to even get the referrals for the "services". They deliberately waste time so that the parents can't complete their services in the time frame that is set up by them. Its ignorant to believe that their job is to protect children. Statics show that children are 10 times more likely to be abused, raped, and even killed in a foster home. CPS makes a lot of money from kidnapping children. If CPS didn't take children there would be no money coming into their corrupt agency. What CPS says goes even if its a lie and they children are the victims. The children are cash cows for CPS. I worked for CPS and I quit because I was sick of my supervisor forcing me to lie about good parents. If I objected he threatened to fire me. I couldn't bring myself to do it anymore!

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  11. In foster care the children have a healthy stable inviroment. But the system is so messed up by giving the bio parents they want. for free I might add. Now hear the foster parents sit after 1year and 7 months and still no tpr. Why? The parents have no place for them to live no real income and have been in and out of jail this whole time. This makes me sick to think that we are wasting tax payers money on this. What about the chhildren? No say wanting stability and boundries but no foster parents have to jump through hoops . What gives with our laws today. What about the CHILDREN.

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  12. So my child's father hasn't been their for 2 &1/2 years. He left three days before she turned 2 and stopped paying childsupport a month before. To my knowledge he hasn't seen her since. He has not contacted me nor has attempted! He is now supporting his second kid but won't support our daughter. Childsupport can't find him and when the cops go to his families they ask if he's their and they say no he's in "Mexico". Him and his girlfriend blocked me from Facebook. I believe if he wants to see her or know anything why block me! Anyways my fiancee has been supporting her and he has been their for her she even calls him dad. We have a son together and he even wants to adopt her. Her father obviously doesn't want to step up and be a parent and do his duty as a parent. I'm afraid that when we go to court for this if he'll automatically will show up and not get his right terminated. He doesn't know English and my daughter doesn't know Spanish. Also since he does taxes illegally I don't want him claiming my daughter and other kids he doesn't know and doesn't support. I don't want her to have problems with all his problems. So the understanding will be difficult especially when she already has a speech problem.

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    Replies
    1. You may want to consult with an attorney who has expertise in Termination of Parental Rights cases to discuss your options and the various ramifications based on what you decide to do.

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  13. My daughter has never met the adjudicated father and I have located him after 9 years of his absents. I have looked on the courts website and can not find voluntary TPR paper work for him to sign and to be signed by a Notary can you point me in the right direction. Please

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    1. Some of the forms are on the Courts website: www.wicourts.gov. I would suggest you contact an attorney with expertise in TPR cases for assistance since the law in this area is very technical.

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  14. I see the forms online, but how do I know which is the correct form? JC-1636 or JC-1637

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  15. JC - 1636 is used if the birth father of the child has not been adjudicated as the father of a nonmarital child or if the TPR proceeding is to be help prior to a step parent adoption proceeding.

    JC - 1637 is used in a non-step parent adoption circumstance or where the birth father has been adjudicated or is the presumed father by marriage and cannot come to court for the TPR proceeding.

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  16. My husband and I have been foster parents since early 2011 and in September took placement of a 2 month old little girl who is still with us and in July last year her newborn sister joined us at 2 days old. Both girls were born addicted to cocaine. So my question is this... TPR petition was filed 12 May this year and the first hearing date is 10 June. We suspect that the BM is going to appeal (no dad for either child). Does the 30 days notice to appeal begin when the petition is filed or after that first court date? Any advice much appreciated!

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    1. An appeal process dies not begin until there is a court ordered termination. You should discuss the entire process with the DA handling the case. The process is complicated and time consuming.

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  17. I need to help my grandson, his mother my daughter had a chips petition due to living with my ex, he or she didnt keep a clean house, she was doing good had a job her own place, then lost her job etc, now she is being serviced tpr papers, what can I do so my grandson is not being adopted, my daughter statied some untruths about me at the beginning because she thought she would get her kids back, so the GAL doesnt want to place my grandson with me. what can I do so my grandson is not adopted?

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    Replies
    1. You should consult with an attorney who has special expertise in TPR cases to discuss options available under the law.

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  18. I am a father my child's mom wants to give him up for adoption saying I abandoned her witch is not true she left when I was working the adoption agency contacted me before my child was born I told them I was opposed to the adoption and they went ahead with the adoption I have been through the courts won that desion went through the appellic court won now the supreme court granted a review what's the chances I lose my rights this is a tpr case

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    1. No one can ever predict the outcome of a case.

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  19. Hi my boyfriend just got served papers to establish parent and child relationship, but he didn't even know anything about it till now. The child is 9 years old and never new. We filed for a paternity test but my question is if he is the father can he sighn over his rights?

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    1. Your question may seem simple but it is complex. It depends on what State the child lives in. Every State has different laws regarding voluntariy termination of parental rights. If your boyfriend is found to be the biological father by DNA testing, he should consult with an attorney regarding his options.

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  20. Is there a limit to the number of times a parent can fire their public defender in an effort to stall the TPR? The children have been in care for years, and while I understand the need to make haste slowly, surely there is a limit to the court's patience. The way I read the statute, it says that a hearing needs to be scheduled within 45 days of the initial appearance, but court and attorney schedules being what they are, our trial date was set for over 4 months after the initial appearance. If the father continues to fire his attorneys, this could go on forever. At what point does the need for permanence outweigh the parents rights to change lawyers on a whim? Of course I am viewing this from their perspective of a foster parent who hopes to adopt, so I admit that I am taking a one-sided view of things, but surely there must be a limit. Thank you for your time and expertise.

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    1. There is no specific limit, however, the trial judge does control whether the attorney may withdraw or whether the client may "fire" his or her counsel. The mere fact that a client does not want his of her attorney does not mean the client may have a new appointed attorney. If there are not irreconcilable differences, the trial judge may deny the request. Also, under some circumstances, "bad behavior" may result in a client's forfeiture of counsel. This is rare but does happen on occasion. It is incumbent on the trial judge to be in control.

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  21. I know that the laws have changed in an effort to ensure children do not languish in the system, but how is there any substantive difference when backlogs in court cases delay the process so significantly? For example, the way I am reading the statute, it says that a trial must be held within 45 days of the initial appearance, but our case was scheduled for a little over 4 months after the initial appearance due to scheduling conflicts. I have now heard that we are case 4 of 4 on that day, so unless the other 3 cases are settled in advance, doesn't it seem likely that we will get bumped? I am sure that I am not understanding something. I have discussed this with our worker, but she has no additional information to share. Milwaukee county had more TPR trials last year than all other counties in the state combined. It seems that everyone agrees that children should not have to wait years for permanence and yet that is exactly what is happening. Is there a reason why, even with the best of intentions, these cases go on and on? Is there anything I can do as a citizen to make a difference? If our system is so overburdened, why are efforts not being made to elect more judges, hire more public defenders, build another courthouse? Perhaps I have an overly simplistic view of things, and my desire for a speedy conclusion to our own case certainly taints my view of what is fair and right, but this can't be what was envisioned by the signers of the Adoption and Safe Families Act. As a judge, what are your opinions on the current state of our system? Do you think it is working as it is now, and if not, do you see any chance for a working system in our future? Again, thank you for your time and attention to my questions.

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    1. There is no single reason for the unfortunate delays that attend a TPR case. The most significant reason seems to be a lack of financial resources available to address these cases. Lack of financial resources affects the number of prosecutors and public defenders available to assign to these cases. It is also important to note that parents have a right to legal representation yet there are very few attorneys who are willing to take these cases. Without the necessary resources and attorneys, the tight time deadlines end up giving way.

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  22. Judge-

    I am going through a chips case in Racine WI, a malicious caller with an obvious vendetta that I have proved with clear and convincing evidence that I stupidly gave to the courts as a motion to dismiss, under the father because even though he is the biological father ( judge led us to believe be was part of the case in interest of our children) but turns out he will now only be a witness, is that legal? Of its in interest if our children should he be a part of the case with his own attorney? We are not getting due process at all, that's after a warrantless entry with no imment danger and no court order, I've been given ineffective counsel twice, the caller broke in numerous times to my home, took pictures without consent, stole from me, took CPS worker through my home after they called me to be home and I said I'd be there in 15 mins, police refuse to arrest her then, she made 14 false allegations to CPS and police against me that were investigated and ruled as she was lying and closed out in fact police were there the night before the 13 people broke in with a locksmith and stole my children ages 2&3, the timing is far beyond the time limit its been 10 months, for no reason to my own, father and I have been denied visits, treated horrible all our rights violated and its not the first time RACINE has done this, please I beg you to contact me, 262-777-0566 email address saranjeremy4ever@gmail.com, since I exposed them they took over my main email and Facebook, they got my evidence and did not move the court in any motion filed under the father, my counsel would not even put my affidavit of Facts on record he did not prepare a defense at all for me, when everyone seen my evidence they now put motion in liminie under my name and said I don't want to mention the unsubstantiated calls, when yes I do that is my entire defense, I learned law by myself, can't afford an attorney there is numerous reasons to conflict of interest to 14&4 amendment violated, to no due process, to dad not part of it, to given ineffective counsel to many other reasons this should be closed, the day kids were removed there was no investigation and no effort to keep children with me, they never called the dad at all everything is against the law and against the oath they took. We need help please!!!!! Please remember your oath I'm begging you as no one will help us and continue turning the other cheek! I believe there was a secret hearing last day in court! Please its case # 15-Jc-21 and 15-Jc-22 and I have video of caseworkers admitting the vendetta and Malicious caller Taking them in knowingly that I was on my way home, I have ton of proof! They are trying to save face for their negligence and failure to follow protocol, in meantime parents learning the law getting treated unfairly treason perjury obstruction 14&4 th amendment, police refusing to arrest for real crime committed against me!! Please this is not right! And our family and children do not deserve this the DA on jury instructions say I have to refrain from using statement best interest of the children why? Why am I being harassed and email broke into when they should have arrest this woman then never would got this far she's uncreditable as they admit it being lies all other 14 times so they break in steal my children on no investigation???? Call anytime! If you can do anything with the case number please do so this is wrong and I plan to appeal, I've started investigation into lawyer tomorrow is judge and then federal court why would they want to do this ? Their discovery is nothing it consists of everything from the malicious caller including pics from when she broke in not even the day in question, I can give you all details please do something, I'm desperate for help feel I came across your blog for a reason! Thank you so much!!

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    1. My blog is for educational purposes only. I do not consult nor do I give legal advice. A person is best served if they hire an attorney who has expertise in the area in which the person's problem lies.

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  23. Hello.....we have a foster son who is 2 1/2. His mother has surrendered her rights. His father has had visitation stripped since he was one year old. His drug od choice being alcohol. After the child has now been in care for 19 months (with us for 15 months), we have a tpr trial coming up in June. The father has been clean since February although our case worker says itnia a slam dunk because there are domestic abuse issues also. Is this true? Although he will be clean almost 6months in June, the tpr could still be granted. Thanks!

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    1. Every case is very fact specific. The outcome will depend on how the evidence is viewed.

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  24. What do I do if I find that the guardian ad litem created fake reports and used those to remove my son from my care? Now what do I do if the GAL had the childs legal mother changed? Really- this is the craziest stuff I have ever seen in my life.

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    1. You should consult an attorney in your jurisdiction who has expertise in TPR law since the law is different from state to state.

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  25. If a parent missed court the first hearing in a tpr case due to living 2 hours away from Milwaukee county and did not have transportation... The judge defaulted the mother and took her rights but before that was seeing the child 3 times a week... Will she be able to apeall? And what are the chances that the appeals go thru??

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    1. You should consult with an attorney with experience handling TPR cases to discuss your specific facts and circumstances.

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