Termination of Parental Rights Law in Wisconsin - The Initial Appearance

By John DiMotto

One of the most important court proceedings in a termination of parental rights (TPR) action is the Initial Appearance. It is during this proceedings that the "groundwork" for the entire case is laid.

The "Initial Appearance" is usually a bifurcated proceeding. The first part is for the purpose of getting the parents into court, establishing personal jurisdiction, briefly advising them of the nature of the case and the rights available to them, and referring them to the Public Defenders Office in order to obtain counsel for them. The case is then adjourned for a short time in order to give the Public Defender time to appoint counsel. The second part is much more substantive. During this part of the Initial Appearance, the court engages in a detailed colloquy with the parents and their counsel about the substance of the Petition, the sufficiency of the Petition, nature of the TPR proceedings, the Rights that the parents have during the proceedings, the parent's "plea" to the Petition, the discovery process and the importance of the parents co-operating with counsel in order to ensure that justice is done in the case. The court then sets dates for a final pretrial and jury/court trial.

1) Substance of Petition -- somewhat similar to a criminal complaint, a TPR Petition must set forth probable cause; that is, it must set forth facts and circumstances that support the elements of the "Grounds" alleged by the State. It provides everyone with a road map for the case.

2) Sufficiency of Petition -- the court must determine if the Petition is legally sufficient. If it does not provide information connecting the parents with the child and connecting the parents' behavior to "Grounds," the case cannot proceed.

3) A TPR proceeding is a two phase proceeding. The first phase is the "Grounds" phase. The State bears the burden of proof to establish "Grounds" for termination. There is a right to a jury trial in the "Grounds" phase and the rules of evidence apply. The second phase is the "Disposition" phase. This is a trial to the court without the right to a jury and the rules of evidence do not apply. Best Interests of the Child is the standard in this phase.

4) Rights -- the parents have the right to counsel, right to a jury trial, right of confrontation, right to present evidence, right to testify, right to substitute for a new judge.

5) Plea to Petition -- the parents will either "Denial" to the allegations in the Petition or enter an "Admission."

6) Necessity for co-operation -- it is critical that the judge ensure not only that the parents understand the rights they have and the nature of the case but that they fully understand the need to co-operate and communicate with their counsel, comply with discovery and make all court appearances. A judge should make it clear, in no uncertain terms. that if a parent fails to appear in court or in discovery that this may result in a default judgment in the "Grounds" phase and potentially even in the "Disposition" phase.

7) Scheduling -- the court usually sets two dates; a final pretrial and a jury/court trial.

The "Initial Appearance" is the foundation upon which the case is based. The court must ensure that all the "t's" are crossed and all the "i's" are dotted. The court must also try to connect with the parents regarding the importance of the case and the dire consequences of not taking the case seriously.

In my next blog in this series, I will discuss the availability/consequences of entering a Voluntary Consent or an Admission to a TPR Petition.