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.

Termination of Parental Rights Law in Wisconsin -- Grounds for Termination

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.

Termination of Parental Rights Law in Wisconsin -- An Overview

By John DiMotto

After 20 years as a circuit court judge in Milwaukee County, I have taken an assignment at our Children's Court Center and I am serving as one of the two full time Termination of Parental Rights (TPR) judges in Milwaukee County. I have the honor of serving along with Judge Christopher Foley who is know statewide for being the expert in these types of cases. Today, I am being a series on the law and procedure governing TPR cases.

One of the most fundamental rights any person has is to be a parent. In the case of Steven V. v. Kelly H., 271 Wis.2d 1 (2004), the Wisconsin Supreme Court reiterated the overriding principle that a parent's interest in the parent-child relationship and in the care, custody and management of a child is recognized as a fundamental liberty interest protected by the 14th Amendment to the United States Constitution. The Court further recognized that the termination of parental rights is very consequential in that it permanently destroys all legal recognition of the parental relationship. The "stakes" are so high in TPR cases that every reasonable effort must be made to keep a family intact before the parent-child relationship may be forever severed.

A TPR generally occurs in one of two ways. First, parents may voluntarily seek to have their rights terminated. Second, the State can bring an action to seek the involuntary termination of rights.

With respect to the involuntary petition to TPR, grounds must be established by clear, convincing and satisfactory evidence in a "fact finding" phase. There are thirteen different grounds upon which a TPR action can be based. The rules of evidence are in full force and effect during this phase. This phase can be a trial to the court or a jury trial. If the burden of proof is met, the court will then conduct a "dispositional phase" where the court alone determines whether there is clear, convincing and satisfactory evidence to warrant the TPR. The fact that grounds are found to exist is not dispositive of the outcome. The standard in the dispositional phase is Best Interest of the Child (BIC). In this phase, the rules of evidence are not binding. It is also important to note, that given the importance of the issues in a TPR case there are restrictive timelines that apply so these cases can be adjudicated in a timely manner, although the deadlines can be extended for good cause.

In a TPR case not only is the petitioner, usually the State, represented by counsel, but a guardian ad litem (GAL) is appointed to represent the best interest of the child and each parent is entitled to counsel. Also, if the child is 12 years of age or older, the child is entitled to his or her own counsel in addition to the involvement of a GAL. Furthermore, these proceedings are so sensitive that these hearings are closed to the public.

In my next blog, I will take an in depth look at the various grounds that can be the basis for a TPR case.

Service of Process and Jurisdiction in Civil Actions

By John DiMotto

Now that I have completed my series on Impeachment and Rehabilitation Evidence in Wisconsin, I would like to look at some Juvenile law issues. Today, I will start out with service of process and jurisdiction both generally and as it pertains in TPR (Termination of Parental Rights) cases.

Before a court may act in a civil lawsuit, the court must have both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction is conferred by the constitution and statutes of the state and by statutes of the United States. It cannot be conferred by consent of the parties.

see 801.04(1).

In most cases, in order for the court to have personal jurisdiction over a defendant in a civil lawsuit, the person must be served with a summons pursuant to 801.11, although service may be dispensed with if the person appears in the action and does not, by motion or responsive pleading, raise the defense of lack of jurisdiction over the person, insufficiency of process or untimeliness or insufficiency of service of process over his or her person. see 801.04(2), 801.06 and 802.06(8).

In most cases, to effectuate service and obtain personal jurisdiction over a defendant in a civil lawsuit, a summons must ordinarily be personally served upon a defendant. In most cases, if with reasonable diligence the defendant cannot be personally served then substituted service upon a family member who is at least 14 years of age or a competent adult living at the defendant's residence may be done. Furthermore, in most cases, if with reasonable diligence neither personal or substituted service can be effectuated, service may be done by class three publication (three times) and mailing. see 801.11.

In TPR cases, the service of process rules are different. Under 48.42(4)(a), the summons and petition must be served personally upon the parties, if known, at least 7 days before the date of the initial hearing on the petition. Under 48.42(4)(b), if with reasonable diligence a party cannot be personally served, service may be made by class one publication (one time only) and mailing. Substituted service is not permitted in TPR cases. However, proper service is not a condition precedent if the party appears in court and submits to the jurisdiction of the court.

The issue of what constitutes reasonable diligence has been subject to much litigation. A number of principles are articulated in case law:

1) The purpose of a summons is to give notice to a defendant and confer jurisdiction on the court over a defendant. see Useni v. Bourdron, 264 Wis.2d 783 (Ct. App. 2003).

2) In order for service to be effective, statutes must be complied with. Improper service is a fundamental defect. see Hagen v. MERS, 262 Wis.2d 113 (2003).

3) Strict compliance with the rules of statutory service is required even though the consequences may appear to be harsh. see Bar Code Resources v. Ameritech, 229 Wis.2d 287 (Ct. App. 1999).

4) The burden to establish jurisdiction is on the plaintiff. see Laska v. House, 169 Wis.2d 510 (Ct. App. 1992).

5) In order for the court to have personal jurisdiction, a summons must be served according to the statutes. A defendant's knowledge of a pending action is not equivalent to service. what amounts to due diligence depends on the facts in each case. Slipshod and hap hazard attempts to serve are not sufficient. Two attempts, under some circumstances, may be sufficient. see Heaston v. Austin, 47 Wis.2d 67 (1969).

6) Reasonable diligence requires pursuit of "leads or information reasonably calculate to make personal service possible. see Welty v. Heggy, 124 Wis.2d 318 (Ct. App. 1984).

7) Diligence needed is reasonable, not all possible diligence. see Haselow v. Gauthier, 212 Wis.2d 580 (Ct. App. 1997).

8) Fundamental to due process requirement is provision of notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Process server must not stop short of pursuing a viable lead. see Loppnow v. Bielik, 2010 WI App 66, ___Wis.2d ___ (Ct. App. 2010).

It is incumbent upon the trial court to ensure that before it takes action in a case, that it is satisfied that the jurisdictional requirements in the particular matter have been met. This is critical when a default judgment is being sought. If service was not effective, the validity of a default judgment is in question. Justice demands nothing less.

Impeachment and Rehabilitation Evidence in Wisconsin - Prior Criminal Convictions

By John DiMotto

One of the most compelling types of evidence used to impeach the credibility of a witness is evidence of prior criminal convictions (or juvenile adjudications of delinquency). When a jury learns about a prior conviction/juvenile adjudication, although the accompanying jury instruction advises the jury that it should only be used in assessing the credibility of what the witness is saying, the temptation to apply the old adage "once a criminal always a criminal" is front and center. Rules exist to try to ensure the proper use of this type of evidence.

The use of prior criminal convictions/juvenile adjudications is governed by 906.09. It sets forth the general rule that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. Furthermore, the party cross examining the witness is not concluded by the witness's answer if it is incorrect. However, there is an exclusion clause which indicates that such conviction/adjudication may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In other words, the trial judge is the gatekeeper with respect to what convictions/adjudications can be considered.

There is a presumption that a person who has been convicted of a crime/adjudicated delinquent may not be as truthful as someone who has never been convicted/adjudicated and, therefore, questioning in this area is relevant. Also, the number of convictions/juvenile adjudications is relevant because the law further presumes that a person who has been convicted/adjudicated multiple times is considerably less credible that someone with fewer convictions/adjudications. However, it should be noted that while the fact of conviction/adjudication is relevant and admissible, the fact that a person has never been convicted/adjudicated is not considered relevant and is not admissible. The theory is that everyone is expected to follow the law and be law abiding and in so doing a person does not gain or enhance his/her credibility. Furthermore, the fact that a person has no convictions/adjudications does not mean that he/she IS law abiding.

In terms of how the trial court approaches the issue of prior convictions/juvenile adjudications, before any question is asked of a witness regarding prior criminal convictions/juvenile adjudications, a hearing must be held outside the presence of the jury where the trial judge, as gatekeeper, determines which, if any convictions/adjudications may be used. Considerations such as passage of time, nature of prior convictions, involvement of dishonesty in the crimes or witness's rehabilitation since the convictions are taken into account before the trial judge rules on the issue.

Once the trial judge has made his/her decision then two questions may be asked of a witness. First, have you ever been convicted of a crime (or adjudicated delinquent)? Second, how many times? If the witness answers truthfully, and usually the witness does because the witness is present when the judge enters the ruling, that forecloses any further questioning. If the witness does not answer the two questions correctly, the witness may be asked questions regarding the specifics of the convictions to "refresh" the witness's recollection as to the correct answers.

There is another exception to when the specifics may be brought to the attention of the jury. If it is the defendant who is testifying, at his/her option, specifics may be elicited by the defendant's counsel. This may occur if the prior convictions are few in number and totally different in nature than the charge at hand. For example, if a defendant is on trial for a sexual assault and he has a prior conviction for disorderly conduct, his attorney may want to bring that fact out so the jury does not think the prior conviction is for a sexual assault.

While prior convictions and juvenile adjudications are admissible:

1) Arrests are not admissible.

2) Ordinance violations are not admissible.

3) Deferred Prosecution Agreements are not admissible.

4) Expunged convictions are not admissible.

When addressing the use of prior conviction/juvenile adjudication evidence, the is incumbent on the trial court to carefully address to what extent this evidence may be used and to ensure that the jury understands for what purpose it can be used and for what purposes it may not be used.

Impeachment and Rehabilitation Evidence in Wisconsin -- "Profile" Evidence

By John DiMotto

After a brief hiatus from blogging in order to make my move to my new assignment in the Juvenile Division at our Children's Court Center, I return to continue my series on the myriad forms of Impeachment and Rehabilitation Evidence in Wisconsin. Today I want to look at the use of "Profile" Evidence in sexual assault prosecutions.

Profile Evidence is usually offered in sexual assault cases as Rehabilitation Evidence. It is usually offered as expert testimony from a psychologist or psychiatrist. It is most often used by the prosecutor to provide an explanation for some act of a sexual assault victim which, on the surface, appears to be odd or strange or inconsistent with what a juror believes the reaction of a sexual assault victim should be. However, it is also used, though less often, by defense counsel to explain that the defendant does not exhibit character traits consistent with a sexual disorder such as pedophilia. When Profile Evidence is offered by the prosecutor it is referred to as "Jensen" evidence. [State v. Jensen, 147 Wis.2d 240 (1988)]. When it is offered by defense counsel it is referred to as "Richard A.P." evidence. [State v. Richard A.P., 223 Wis.2d 777 (Ct. App. 1998)].

The Court in Jensen held that::

1) An expert can testify that a victim's conduct, or acting out, is consistent with child sexual abuse victims.

2) An expert can explain the context in which a victim did something to rebut the defendant's suggestion that the victim fabricated the complaint.

3) Expert testimony on post assault behavior of sexual assault victim is admissible in certain cases to explain the meaning of the behavior and can be used to prevent false assumptions about sexual assault complaints.

4) An expert may be asked to describe the victim's behavior and that of sexual assault victims to help the jury understand the victim's reactive behavior.

Since Jensen, the rule on the use of this type of Profile evidence has been expanded.

In State v. Richardson, 189 Wis.2d 418 (Ct. App. 1984), the Court indicated that an expert may describe behavior of the specific victim in the case and give an opinion on whether this victim's behavior is consistent with other victims. In other words, comparative testimony may be admissible. However the expert may not give conclusions about the victim's actual beliefs at the time of the offense or about the victim's state of mind.

In State v. DeSantis, 155 Wis.2d 774 (1990), the Court indicated that a sexual assault counselor would be allowed to testify how sexual assault victims react to educate the jury and disabuse the jury about widely held misconceptions about how sexual assault victims respond to an assault.

In State v. Delgado, 250 Wis.2d 689 (Ct. App. 2002), the Court set forth some general rules about Jensen testimony:

1) A witness may testify as an expert if 907.02 is complied with.

2) Expert testimony may include opinions regarding symptomatology common to sexual assault victims.

3) Expert testimony may include descriptions of symptoms exhibited by the victim.

4) Expert testimony can include an opinion as to whether the victim's behavior is consistent with behavior of other sexual assault victims.

5) An expert cannot testify that the victim is totally truthful. [Such testimony would run afoul of the rule in State v. Hazeltine, 120 Wis.2d 92 (Ct. App. 1984) where the court indicated that no witness should be permitted to give an opinion that another mentally and physically competent witness is telling the truth. Credibility is for the jury to determine on its own.]

6) An expert cannot testify that the expert has no doubt whatsoever that the victim was a victim of moral turpitude.

The use of Profile evidence by the defense was recognized in the Richard A.P. case. In the spirit of "what's good for the goose is sauce for the gander", the Court of Appeals held that a defendant may introduce character "profile" evidence which seeks to explain conduct or absence of it - to explain that the defendant does not exhibit character traits consistent with sexual disorder such as pedophilia. This is defense Jensen evidence.

In State v. Davis, 254 Wis.2d 1 (2002), the Court indicated that the evidence that a defendant lacks psychological characteristics of a sex offender and unlikely to commit a sexual offense may be admissible both as character and expert testimony. However, the trial court must carefully scrutinize the evidence for relevancy, probative value and unfair prejudice.

In State v. Walters, 269 Wis.2d 142 (2004), the Court held that Davis did not compel the admissibility of Richard A.P. evidence but rather it is subject to discretionary determination by the trial court and the trial court should undertake a 904.03 analysis with respect to this type of evidence.

One huge problem with the introduction of Jensen and Richard A.P. evidence is that under certain circumstances, the trial court may grant a request to allow an independent psychological examination of the victim or defendant. Obviously, this can be very intrusive and therefore before Jensen or Richard A.P. evidence is going to be offered the prosecutor and defense counsel should carefully analyze his/her case to see whether the nature of the evidence will allow for such a request and order from the court for the independent examination.

In conclusion, Jensen and Richard A.P. evidence can provide an explanation for conduct not otherwise understood by layperson jurors. However, care must be used so that the focus of the trial - did a crime occur - is not overshadowed and lost in the maze of expert testimony.

In my next blog I will look at the use of Prior Criminal Record Evidence as Impeachment and Rehabilitation Evidence in Wisconsin.