Termination of Parental Rights Law in Wisconsin -- The Fact Finding Phase

By John DiMotto

There are two phases to a termination of parental rights (TPR) action;

1) The fact finding phase, where a jury or a judge determines whether "grounds" exist for termination. The key consideration in this phase is on the conduct of the parents. and,

2) The dispositional phase, where, if "grounds" are found, a judge determines whether to terminate or consider an alternative such as guardianship or continued CHIPS (child in need of protection or services) jurisdiction. The key consideration in this phase is on the best interests of the child.

In today's blog, I will discuss the fact finding phase.

The fact finding phase is a "trial." The rules that govern the trial are as follows:

1) The parents and the child have a right to request a jury trial. (The request on behalf of the child is made by the child's Guardian ad Litem -- a lawyer appointed by the court to represent the best interests of the child.) If either of the parents or the GAL request a jury, the grounds will be determined by a jury of 12. Since a TPR action is a civil case, the jury does not have to be unanimous in its decision to return a verdict. A "5/6 verdict" is acceptable; that is only 10 of the 12 jurors need agree to all questions on the verdict. If the right to a jury trial is waived, then the judge will be the trier of fact and decide whether "grounds" exist.

2) The burden of proof in the fact finding phase is on the petitioner, usually the assistant district attorney who brings the case. The middle burden of proof -- clear, convincing and satisfactory evidence -- applies.

3) While there are multiple grounds that a TPR action can be based upon, most cases proceed on the ground of "continuing CHIPS" -- that is, there has been in place a court order in a CHIPS case that the parents have not complied with or on the ground of "failing to assume parental responsibility." When these are the grounds alleged, proof usually entails a broad spectrum of evidence of the life of the parents. It can involve criminal conduct, drug use and a lack of commitment towards one's family. Because of this broad spectrum, the fact finding phase can take 4 or 5 days.

4) The rules of evidence apply in the fact finding phase.

5) The rules regarding jury selection in Chapter 757 and 805 apply in a TPR action.

6) Evidence regarding what is in the best interest of the child is not the consideration in this phase. The focus is on the parents. If grounds are found, then in the dispositional phase the focus in on the child.

In a fact finding phase, the trier of fact - either a jury or the judge - is presented with evidence that focuses on the good and the bad of a person as a parent. It is not pretty.

In my next blog, I will discuss the dispositional phase of a TPR case.