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.
Judge DiMotto,
ReplyDeleteWhile 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.
http://www.nccpr.org/reports/censoredinmilwaukee.pdf
ReplyDeleteThe 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.
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.
ReplyDeleteI am losing my child because of time of great family upheaval which left child and myself fighting to start a new life.
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
ReplyDeleteMy 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.
ReplyDeleteYou 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.
ReplyDeleteI want to address the anonymous responder of Sept 27...
ReplyDeleteAs 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.
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.
ReplyDeleteI 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>
ReplyDeleteI 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!
ReplyDeleteIn 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.
ReplyDelete