Termination of Parental Rights Law in Wisconsin - Permanency Planning

By John DiMotto

Whenever a child is removed from the parental home, federal and state law requires that a Permanency Plan be created and implemented to ensure that a child is reunified with the child's family whenever appropriate, or that the child quickly attain a placement or home providing long term stability.

The first Permanency Plan must be prepared and filed with the court within 60 days after the child is removed from the parental home. Furthermore, the plan must be updated and reviewed by the court every six months until the child is returned to the parental home or until permanency is achieved by an adoption following the termination of parental rights.

The Permanency Plan must address:

1) The names of all of the interested parties.

2) Date of removal.

3) Description of services offered and provided to address the circumstances.

4) Basis for the current placement.

5) Statement as to availability of a safe and appropriate family placement.

6) Statement of reasonable efforts to reunite family.

7) Educational information.

8) Medical information.

9) Plan for future.

10) Goals of the Permanency Plan.

11) Conditions that must be met to ensure safe return to parental home.

12) Statement as to ability of child to consult with court regarding the Permanency Plan.

At the Permanency Plan Review Hearing, the court must consider the following:

1) Continuing necessity for and the safety and appropriateness of the out of home placement.

2) Extent of compliance with the most recent plan by agency, service providers and family.

3) Efforts of Agency to provide appropriate services.

4) Progress towards eliminating causes that prevent return of child to parental home.

5) Potential date by which child can be returned to parental home.

6) Appropriateness of Permanency Plan if child has been out of parental home for 15 of the most recent 22 months.

7) Whether reasonable efforts have been made to achieve the most recent Permanency Plan goals, including through out of state placement if appropriate.

At the hearing, the court will hear from:

1) Attorney for State.

2) Social worker from Agency.

3) Parents.

4) Parents attorneys.

5) Guardian ad Litem.

6) Child, if age appropriate.

What is of the utmost importance is that the Agency involved in monitoring the case, in Milwaukee County it is the Bureau of Milwaukee Child Welfare (BMCW), must make reasonable efforts towards reunification or, if not viable, a permanent placement to provide stability for the child. If the court determines that the Agency has not done "reasonable efforts", their failure to comply with their duties will result in the loss of federal funds which is provided to the states to achieve permanency.

The Permanency Plan Review Process ensures that "no stone is left unturned" in the drive to provide safe permanency for vulnerable children.

In my next blog, I will discuss the Adoption and Safe Families Act (ASFA) and its role in TPR cases.

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.

Blog Will Resume Next Week

By John DiMotto

I was on vacation the week of 9/6 and at a juvenile law judicial seminar this week and have not been able to blog. I will "return to action" the week of 9/20.

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.

Termination of Parental Rights Law in Wisconsin - Voluntary Consent to Termination

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.