Termination of Parental Rights Law in Wisconsin -- The Dispositional Phase

By John DiMotto

If the trier of fact (jury or judge) in the Fact Finding Phase of a TPR action, finds that involuntary grounds have been proven by clear, convincing and satisfactory evidence, the case then proceeds to a Dispositional Phase. In the Dispositional Phase, the judge alone evaluates all of the evidence submitted and determines whether the Best Interests of the child warrants termination as the disposition. "Best Interests of the Child" is the "polestar" in the Dispositional Phase.

In the Dispositional Phase, the Court (ie. judge) must make findings of fact from the evidence submitted in determining what is in the best interest of the child. In the Dispositional Phase:

1) The Court may take judicial notice of the evidence offered in the Fact Finding Phase.

2) An Agency Court Report should be introduced.

3) The Rules of Evidence are relaxed -- not unlike at sentencing in a criminal case.

The Agency Court Report address:

1) The social and medical history of the child, including prior court involvement.

2) Statement of services needed.

3) Likelihood of adoption.

4) Plans for permanency.

Relevant evidence may include:

1) Expert testimony.

2) Other evidence having probative value regarding disposition.

3) Foster parent input.

In considering the Best Interest Standard, the Court looks at the "egregiousness" of the parent's conduct and must consider the following factors:

1) Likelihood of adoption after TPR.

2) Age and health of child.

3) Time child has been removed from the parental home.

4) Whether child has a substantial relationship with parents.

5) Whether child has a substantial relationship with other family members.

6) Whether it will be harmful to sever substantial relationships.

7) Wishes of the child.

8) Duration of separation of child from parents.

9) Whether child will be able to enter into more stable and permanent family relationship as result of the termination considering results of prior placements, current conditions of placement and likelihood of future placements.

In light of the above, the Court determines whether Best Interests dictates termination or some alternative such as:

1) Guardianship.

2) Dismissal with continuation of CHIPS order.

There is a debate as to whether there is a specific burden of proof (ie. preponderance, clear and convincing or beyond a reasonable doubt) in the Dispositional Phase. In the Fact Finding Phase, by statute, the burden of proof is clear, convincing and satisfactory evidence. However, no where in the statutes or in case law is there a reference to a specific burden of proof in the Dispositional Phase. There are those who say "Best Interests" governs, and that there is no specific burden of proof. While that seems to make sense, in CHIPS cases, where Best Interests drives the Disposition, case law states that there IS a burden of proof -- preponderance of the evidence. If there is a specific burden of proof in a CHIPS case, it would seem that there should be one in a TPR case. If there is, given the severe consequence of termination -- a civil death penalty, an argument can be made that it should be clear and convincing just as it is in the Fact Finding Phase. However, this is an unanswered question.

In my next blog, I will look at Permanency Plan Reviews -- hearings that are mandated by federal law to ensure that permanency is obtained for children whose parental rights have been terminated.