By John DiMotto
If a parent wishes to contest a TPR, the State must prove to a jury or to the court by clear, convincing and satisfactory evidence that involuntary grounds under 48.415 are present. If this burden of proof is met, then the court must find that the parent is unfit and the case proceeds to Disposition. If ultimately the court orders TPR, this finding constitutes a separate ground which can be the basis of a TPR on another child. However, a parent can voluntarily consent to termination and if accepted by the court the parent is not found to be unfit and the ultimate TPR judgment cannot be used as the basis for a future TPR action.
Before the court can accept the voluntary consent of a parent, the court must engage in a detailed colloquy with the parent to ensure that the decision is being made freely, voluntarily, intelligently and understandingly. This is critical since termination affects one of the, if not the most important fundamental right of any person -- the right to be a parent.
There is an interplay with a number of statutes that must be considered.
1) 48.41 recognizes the right of a parent to voluntarily consent to termination of one's parental rights.
2) 48.42(1) addresses the nature of the TPR petition and recognizes that voluntary consent exists as a ground separate and distinct from involuntary grounds.
3) 48.422 (3) and (7) set forth the statutory requirements that must be considered by the court when a parent wants to voluntarily consent to TPR.
In addition to the statutory mandates, two appellate cases have addressed the voluntary consent issue.
1) In Interest of A.B., 151 Wis.2d 312(Ct. App. 1989) makes it clear that the court must be satisfied that the decision is informed and voluntary. A careful analysis of the circumstances of the parent must be undertaken.
2) In Interest of D.L.S., 112 Wis.2d 180(1983) discusses the tremendous interests at stake and how the court must ensure that due process is afforded.
In making sure that due process is honored, the court must inquire about, and obtain directly from the parent, information regarding education, physical and mental health, employment, medication issues and drug issues. The court must be satisfied that:
1) there have been no threats, promises, force or coercion brought to bear upon the parent.
2) the parent understands that he/she is giving up important rights: right to jury trial or court trial; right to confront witnesses; right to call witness; right to testify; right to make the state meet its burden of proof.
3) the parent and counsel have thoroughly discussed the decision being made and its consequences.
4) the parent understands that the decision will result in the parent forfeiting any say in the life of the child.
5) the parent realizes that there are alternatives to TPR that may be available.
In the final analysis, if the court is sure that the parent is making his/her decision with his/her eyes wide open and that the decision has been carefully thought out with full understanding of all that is being done, the court can accept the voluntary consent and then proceed to disposition.
Notwithstanding the voluntary consent, however, the court must be independently satisfied that TPR is warranted by considering all the evidence in light of the "polestar" standard -- Best Interest of Child in light of factors in 48.426(3).
In my next blog, I will discuss the Fact Finding Phase in a TPR case.