By John DiMotto
In Wisconsin, termination of parental rights can result either voluntarily or involuntarily. The vast majority of cases filed seek involuntary termination. These cases are almost always brought by the State and the petition sets forth detailed information and facts to support the grounds alleged. There are instances, however, when a parent makes the decision to consent to termination of his/her rights because he/she believes that it is in the child's best interests. Many of these cases are filed by the parent himself/herself under 48.41 although in some instances they are brought by the State allege the parent's consent as the grounds. see 48.42.
In a voluntary consent scenario, the grounds consist of giving a free, knowing, intelligent consent. In these cases the Court must undertake a colloquy with the parent to be sure that termination is what the parent wants and be convinced that the parent fully understands the consequences of the decision. see 48.422(7). If the court accepts a voluntary consent after an in depth colloquy with a parent, it can proceed to disposition. A finding of unfitness is not a condition precedent to disposition.
In an involuntary TPR scenario, a parent disputes the allegations of the State and will demand either a jury trial or a court trial. The grounds alleged must be proven by the State by clear, convincing and satisfactory evidence. There are seventeen grounds that can be alleged:
1) Abandonment. Child left without provision for care or support and parents can not be found for 60 days. see 48.415(1)(a)1.
2) Abandonment. Child left without provision for care or support in a place where child is exposed to substantial risk or great bodily harm or death. see 48.415(1)(a)1m.
3) Abandonment. Child abandoned at less than one year of age. see 48.415(1)(a)1r.
4) Abandonment. Child out of parent home and parent does not visit or communicate with child for 3 months. see 48.415(1)(a)2.
5) Abandonment. Child away from parent, parent could visit or communicate but does not for 6 months. see 48.415(1)(a)3.
6) Relinquishment. This occurs when a parent gives up custody within the first 72 hours of the child's life. see 48.415(1m).
7) Child in Continuing Need of Protection or Services. This occurs where there is in place a dispositional order that governs a child in need of protection or services, reasonable efforts have been made to help the child and family reunite but the parent has failed to take advantage of the programming and services offered. see 48.415(2)(a).
8) Child in Continuing Need of Protection or Services - Three Strikes. see 48.415(2)(am).
9) Continuing Parental Disability. For two of the last five years the parent has been under disability, the condition is likely to go on indefinitely and the child is not being properly cared for. see 48.415(3).
10) Continuing Denial of Periods of Physical Placement or Visitation. This occurs when an order affecting a family has denied placement or visitation for at least one year. see 48.415(4).
11) Child Abuse. see 48.415(5).
12) Failure to Assume Parental Responsibility. This occurs where a parent does not have a significant parental relationship. see 48.415(6).
13) Incestuous Parenthood. This is utilized against the father. see 48.415(7).
14) Homicide or Solicitation to Commit Homicide against a parent by the other parent. see 48.415(8).
15) Parenthood as a result of a Sexual Assault. see 48.415(9).
16) Serious Felony against One of the Person's Children. see 48.415(9m).
17) Prior Involuntary TPR. see 48.415(10).
Of these 17 grounds, most oftentimes the State alleges three grounds: Abandonment - 3 or 6 months, Continuing Need for Protection or Services, and Failure to Assume Parental Responsibility. Regardless of what grounds are alleged, the allegations brought by the State provide the basis upon which the case will proceed.
In my next blog, I will look at the responsibilities of the Court at the Initial Appearance in the case.