Monday, July 29, 2013


By:  John J. DiMotto


In Wisconsin, there are two types of termination of parental rights (TPR) cases. First, there can be a government commenced Involuntary TPR action brought by a County District Attorney’s Office or by a County Department of Human Services against a parent who has abused or neglected a child.  Second, there can be a private Voluntary TPR action brought by a parent who makes the decision during pregnancy or shortly after the birth of the child to give the child up for adoption.

All TPR actions are closed to the public under 48.299 and all records of the proceedings are subject to confidentiality under 48.78.  Furthermore, because of the extremely sensitive nature of juvenile court proceedings, including TPR and Adoption cases, any person who divulges any information which would identify the child, the expectant mother or the family involved in any proceeding shall be subject to contempt proceedings under Chapter 785.


An involuntary TPR action is a government-endorsed petition that is commenced by a County District Attorney or County Department of Human Services.  This case is commenced when:

1.     **A parent has abused or neglected a child;
2.      **A County Child Protective Services unit has removed a child from the parental home due to the abuse or neglect;
3.      **A court approves the removal and detention of a child and placement in a foster home, group home or home of a relative;
4.      **A court enters an order in a CHIPS (Child in Need of Protection or Services) case setting forth “conditions of return” that a parent must meet in order for the child to be returned to the parent;
5.      **Fifteen months go by and the parent has not met the “conditions of return.”

If an involuntary TPR action is commenced because the parent does not meet the conditions of return, the parent has the right to contest the action.  The parent is entitled to a jury trial or a court trial where a jury or a judge decides whether the DA or the attorney for the County Department of Human Services has proven by clear, convincing and satisfactory evidence the grounds alleged in the TPR petition. The three most common grounds for termination are “Abandonment” under 48.415(1); “Child in Continuing Need of Protection or Services under 48.415(2); and “Failure to Assume Parental Responsibility” under 48.415(6).   

If grounds are proven, the court will then conduct a Dispositional Hearing where the judge alone decides whether or not to terminate parental rights  There is no right to a jury in the Dispositional Phase.  The decision of the court is based on what the judge believes is in the best interest of the child based on all the information brought to the court’s attention. 

If a parent does not come to court to contest the grounds alleged in the involuntary petition, the court can take action against the parent.  The court can enter a “default judgment” against the parent, proceed with a Dispositional Hearing in the absence of the parent and terminate parental rights.  If parental rights are terminated, the child can then be adopted.


A voluntary TPR action is a private action commenced by a parent who has decided to terminate parental rights.  It is usually a circumstance where a woman during her pregnancy makes the decision to give the child up for adoption.  She must contact an adoption agency and work with the agency to find a suitable couple or person to adopt the child.  Usually, the mother selects the couple or person whom she wants to adopt the child.  The child can be voluntarily placed with a suitable “adoptive couple” or “adoptive person” under a Voluntary Placement Agreement, but the agreement clearly states that the child may be returned to the birth parent at any time upon request of the parent prior to the termination of parental rights.

When a private, voluntary TPR action is filed by a parent, it is necessary for the court to conduct a hearing with the parent to determine whether the decision to terminate parental rights has been made freely, voluntarily, knowingly and intelligently and that the parent has not been coerced in any way.  The parent must come to court to answer the court’s questions. 
It is not unusual for a parent to have second thoughts or some hesitation.  Under those circumstances, the  attorney for the “adoptive couple” or “adoptive person” usually asks the court for an adjournment to procure the appearance of the parent so the case can continue.  The court is willing to accommodate such requests for adjournments until the parent is ready to make the final decision.

If the parent wishes to speak with an attorney about the decision, the parent has a right to hire an attorney.  If the parent is indigent, the court oftentimes will appoint a lawyer at county expense to consult with the parent.  The cost is usually minimal – in the range of $300.  This is done because Chapter 48 makes clear, that the court must ensure that the decision made by the parent is truly voluntary.

If the parent absolutely refuses to come to court or if the parent does come to court but ultimately decides not to terminate parental rights, the court must dismiss the action.  The court has no other choice and, in particular does not have the power to convert a private, voluntary TPR action into an involuntary action.  Said otherwise, the court has no power to involuntarily terminate a parent’s rights in a private, voluntary TPR action. 

In those cases where the parent decides not to terminate parental rights, the child must be returned to the parent.  When that happens, it is very sad, even devastating,  for the “adoptive couple” or “adoptive person.”  They feel bereft and upset because they have established a bond with the child and may also have invested substantial amounts of money in the adoptive process which they will not recoup.  Oftentimes they are very angry and cannot understand why the court seems deferential to the parent’s rights and why the court must consider the emotional state of the parent as it bears on voluntary nature of the decision to terminate parental rights  It may be hard to accept that in a private, voluntary TPR action, the court has no power to force a parent into terminating parental rights.  However, it must be the parent’s decision and it must be a completely free, voluntary, intelligent and knowing decision made without reservation. 


In a governmental, involuntary TPR action, the case is controlled by the governmental agency bringing the action.  The feelings of the parent do not govern how the case is processed.  If a person fails to come to court in an involuntary TPR action, the court can enter a default judgment and proceed to terminate parental rights even without the parent being in court.

In contrast, in a private, voluntary TPR action, the case is controlled by the parent bringing the action.  If the parent chooses to follow through with the termination, the court must be satisfied that the decision has been made freely, voluntarily, knowingly, intelligently and with a full understanding of the impact of and the alternatives to termination.  If the parent has reservations or deliberately chooses not to follow through with the termination, the court has no discretion and must dismiss the case.

Thursday, July 11, 2013

The Validity of Surrogacy Agreements in Wisconsin

By John DiMotto

In a blockbuster decision today, the Wisconsin Supreme Court, in Rosecky v. Schissel, 2013 WI 66, ___Wis.2d ___, upheld the validity and enforceability of all but one provision in a Surrogacy Agreement.  In the decision, the Court addresses the tragic quagmire that results when the surrogate mother changes her mind and does not want to terminate her parental rights in accordance with the agreement.  The Court urges the Wisconsin Legislature to "address surrogacy agreements to ensure that when the surrogacy process is used, the courts and the parties understand the expectations and limitations under Wisconsin Law."

The facts in this case reveal that David and Marcia Rosecky entered into a Parentage Agreement with their good friends, Monica and Cory Schissel.  Due to health issues, Marcia could not become pregnant.  Monica offered to act as a surrogate for the Roseckys. After extensive conversation about the legal ramifications of surrogacy, they each retained legal counsel and the four of them executed a Parentage Agreement.  They agreed that Monica would become pregnant and carry the child for the Roseckys; that the Roseckys would be the legal parents of the child; that the best interests of the child would be served by being in the Roseckys' legal custody and physical placement; and that the parties would cooperate fully in any parentage proceedings to determine the Roseckys as the child's legal parents, including termination of parental rights and adoption.  Monica became pregnant through artificial insemination using her egg and David Rosecky's sperm. Prior to the birth of the child, the Roseckys and the Schissels had a falling out.  As a result, Monica reneged on the Parentage Agreement and refused to terminate her parental rights. After the birth of the child, David Rosecky commenced a paternity action and was adjudicated father of the child.  A guardianship action was also commenced to resolve all other issues in the Parentage Agreement.  The trial court found that the Parentage Agreement was not enforceable; that the Monica could not be forced or required to terminate her parental rights; that custody and placement could not be decided under the Parentage Agreement but rather would be decided under Chapter 767 provisions regarding custody and placement.  The trial court granted David primary physical placement and granted Monica periods of placement finding this to be in the best interest of the child.  This appeal resulted.

Majority Opinion
In its decision, the Court held:

1)  Contract law principles apply when examining a surrogacy agreement.
2)  The Parentage Agreement contains the essential elements of a contract.
3)  While traditional defenses to the enforcement of a contract apply in the context of a surrogacy agreement, none are present here to render the Parentage Agreement unenforceable.
4)  The portions of the Parentage Agreement requiring a voluntary TPR do not comply with the procedural safeguards set forth in 48.41 because Monica would not consent to TPR and there is no legal basis for involuntary termination, however, aside from the TPR provisions in the Parentage Agreement, the agreement is a valid and enforceable contract unless enforcement is contrary to the best interest of the child.
5)  The severability clause in the Parentage Agreement is valid.
6)  A Parentage Agreement is not contrary to public policy.
7)  The trial court erred in excluding the Parentage Agreement.
8)  The trial court erred in rendering its custody and placement decision without consideration of the Parentage Agreement.
9)  The case be remanded to the trial court for a hearing on custody and placement, wherein the terms of the Parentage Agreement are enforced unless enforcement is contrary to the best interests of the child.

In arriving at its decision, the Court discusses and highlights;

1)  that surrogacy has created ways for people to have children regardless of their reproductive capacity;
2)  that surrogacy agreements outline the rights and responsibilities of all parties throughout the process in order to effectuate their intent. 
3)  that the Wisconsin Statutes do not provide a specific answer to whether the Parentage Agreement is enforceable; 
4)  that the Wisconsin Statutes do not contain a position of public policy with respect to surrogacy;
5)  that the Wisconsin Statutes do not contemplate nor address the use of a surrogacy parenting agreements in the adjudication of custody and placement disputes;
6)  that the Wisconsin Statutes do not contemplate nor address surrogacy vis a vis adoption and termination of parental rights;
7)  that the TPR-Adoption scheme does not provide relief in a surrogacy scenario;
8)  that the interests supporting enforcement of a Parentage Agreement are more compelling than interests against enforcement because enforcement promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life.

Concurring Opinion
While the Court was unanimous in the result, Chief Justice Abrahamson wrote a concurring decision.  She believes: 

1)  that the issues of custody and placement should be determined based on the best interest of the child from the factors in Chapter 767 -- 767.41(5)(am) -- and not based on the surrogacy agreement. 
2)  that the majority opinion's "authorization of people to contract out of the State's traditional oversight role in the protection of children." is wrong.
3)  that custody and placement of children born of surrogacy should not have different rights and be treated differently from any other child.  
4)  that the majority holding that "a Parentage Agreement is a valid, enforceable contract unless enforcement is contrary to the best interest of the child." is overly broad.
5)  that the trial court should adhere to the legislative directions in Chapter 767 since this is an action affecting the family and Chapter 767 addresses custody and placement.
6)  that any change in the law and the procedure regarding actions involving paternity, legal custody, and physical placement of a child when an alternative reproductive method and a surrogacy contract are implicated should not be undertaken by the Court; 
7)  any change here is a task best left to the legislature.

While the Wisconsin Supreme Court has finally addressed the issue of surrogacy contracts, it remains to be seen whether the Wisconsin Legislature will step into the breach and address the concerns set forth in both the majority and concurring opinions.  Unless the Wisconsin Legislature does so, parties to a surrogacy contract will be free to set their own rules regarding how to address all of the very thorny issues surrounding surrogacy.  This scenario is rife with problems which can contribute to great instability in the life of a child born of surrogacy.  Only time will tell.


Tuesday, July 2, 2013

Review of SCOTUS Decisions - End of 2012-2013 Term: Fisher v. University of Texas at Austin

In addition to SCOTUS addressing the Voting Rights Act of 1965 and the Indian Child Welfare Act in its final week, the Court once again addressed the issue of Affirmative Action.  Today, I would like to look at and analyze Fisher v. University of Texas at Austin, 570 U.S. ___(2013).

In a 7-1 decision (Justice Kagan took no part in the consideration or decision), The Court ultimately re-affirmed the viability of Affirmative Action but not without first making it perfectly clear that the demanding burden of strict scrutiny articulated in Regents of Univ. of  Cal. v. Bakke, 438 U.S. 265 (1978) and reiterated in Grutter v. Bollinger, 539 U.S. 306 (2003) must be adhered to and complied with without fail.

The history of the case reveals that the petitioner, who was rejected for admission to the University of Texas, sued the University alleging that its consideration of race in admissions violated the Equal Protection Clause.  The District Court granted summary judgment to the University and the Fifth Circuit Court of Appeals upheld the University's admission plan in light of Grutter. 

In the decision of the Court, authored by Justice Kennedy, the Court held that the Fifth Circuit did not apply the correct standard of strict scrutiny, its decision affirming the District court's grant of summary judgment to the University was incorrect and, as such, its decision is vacated that the case is remanded for a further hearing on whether the University improperly considered race in admissions.

The Court takes a "walk down memory lane" in its discussion of previous cases dealing with Affirmative Action.

The Court notes that in Bakke, Justice Powell, writing for the Court stated that "any racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.'"  Furthermore, Justice Powell stated that one compelling interest that could justify the consideration of race was the interest in the educational benefits that flow from a diverse student body.  However, the interest in securing diversity's benefits was noted to be complex.

The Court also notes that in Grutter the Court reiterated that race may not be considered unless the admissions process can withstand strict scrutiny. Furthermore, Grutter sets forth that "to be narrowly tailored, a race-conscious admissions program cannot use a quota system, but must instead 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'"

The Court embraces the principle in Bakke  that strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose."

Justice Kennedy clearly sets forth that the University must establish both that its goal of diversity is consistent with strict scrutiny and that the admissions process also meets strict scrutiny in its implementation.  In other words, the University must "prove that the means chosen ... to attain diversity are narrowly tailored to that goal."  Justice Kennedy, once again quoting from Grutter says "it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'"  Furthermore, the court held that "narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity.  This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications."  In the concluding paragraph, Justice Kennedy writes "strict scrutiny must not be 'strict in theory, but fatal in fact."  But the opposite is also true.  Strict scrutiny must not be strict in theory but feeble in fact.  In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context:  the benefits of a student body diversity that 'encompasses a ... broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Justice Thomas wrote a concurring opinion.  He writes that he would hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Justice Ginsburg wrote the lone, and brief, dissent.  She would not return the case for a second look.  She would find that the University's admissions policy flexibly consider race only as a "factor of a factor of a factor of a factor" in the calculus and that Bakke and Grutter do not require any further determinations.

The Court's decision makes it clear that race can still be a factor, but in a very, very limited way.  The question raised by this decision is whether it is a precursor to completely barring race as a factor in a future case; that is whether this decision is the Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) of Affirmative Action.  Only time will tell.

Monday, July 1, 2013

Review of SCOTUS Decisions - End of 2012 - 2013 Term --- Adoptive Couple v. Baby Girl

Today I would like to look at another one of the last decisions issued by SCOTUS in the 2012 - 2013 Term.  It is a case which addresses three provisions of the Indian Child Welfare Act.  The case is Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013).

The Indian Child Welfare Act (ICWA) establishes federal standards for state court child custody proceedings involving Indian children.  Congress enacted ICWA to address the consequences of abusive child welfare practices that separated Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. see Mississippi Band of Choctow Indians v. Holyfield, 490 U.S. 30 (1989).

 There are three specific provision of ICWA that were addressed in  Baby Girl:  Section 1912(d), Section 1912(f) and Section 1915(a).

Section 1912(d) requires that any party seeking an involuntary termination of parental rights to an Indian child under state law must demonstrate that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."

Section 1912(f) sets forth that a state court may not involuntarily terminate parental rights to an Indian child "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."

Section 1915(a) sets forth, with respect to adoptive placements for an Indian child under state law, that "a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."

In Baby Girl, the father, who was a Native American with Cherokee heritage, provided no support for the birth mother, who was not Native American, nor did he provide any support for the child or make any meaningful attempts to assume parental responsibility.  When the family selected by the mother to adopt Baby Girl  gave the father notice of the pending adoption he did not initially object.  However, before the adoption could be finalized he sought a stay of the proceedings and sought custody.  Ultimately, a trial was held in a South Carolina state court when the child was two years old.  The Family Court determined that the adoptive couple did not carry the heightened burden under 1912(f) of proving that Baby Girl, would suffer serious emotional or physical damage if the biological father had custody.  The petition for adoption was denied and custody awarded to the biological father.  At age 27 months, the child was handed over to the biological father whom she had never met.  The South Carolina Supreme Court affirmed the Family Court's denial of the adoption and awarding of custody to the biological father.  It found that the biological father came within the ICWA definition of "parent" and that the requirements of 1912(d) and 1912(f) were applicable and were not proven.  It also stated that if it had decided to terminate the biological father's parental rights that the provisions of 1915(a) - the adoption placement preferences -- would have applied.  SCOTUS granted certiorari and reversed the decision of the South Carolina Supreme Court.

In the decision of the Court, Justice Alito, writing for the Court, indicated that neither 1912(f) nor 1912(d) bars termination of the biological father's parental rights in this case.

With respect to 1912(f), Justice Alito wrote that 1912(f) requires as a condition precedent that the parent at issue have custody of the child in the first instance since 1912(f) sets forth that "no termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (emphasis added). The Court held that the adjective continued is critical in the analysis and plainly refers to a pre-existing state.  As a result, 1912(f) does not apply to an Indian parent who never had custody of the Indian child.

With respect to 1912(d), Justice Alito wrote that 1912(d) requires "active efforts"... to prevent the breakup of the Indian family and that "breakup" refers to "the discontinuance of a relationship."  Where a parent has no relationship, 1912(d) is inapplicable.  Here, the Court found that there was no relationship to breakup and as such 1912(d) is not applicable to the biological father.

Finally, with respect to 1915(a), the Court held that its rebuttable adoption preferences apply only when an alternative party has formally seeks to adopt the child.  Here, since no alternative party had done so it is inapplicable.

As a result, the Court reversed the decision of the South Carolina Supreme Court.

In a lengthy dissent written by Justice Sotomayor, she writes that the majority has misconstrued the statutes and illogically reads the statutes at issue. She writes that the majority opinion turns section 1912 upside down and contrary to Congress' express purpose in enacting ICWA:  that is, in preserving the familial bonds between Indian parents and their children and, more broadly, Indian tribes' relationships with future citizens who are "vital to their continued existence and integrity." She concludes that "the majority's hollow literalism distorts the statute and ignores Congress' purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone."

Justice Scalia, in a brief dissent, writes "The Court's opinion, it seems to me, needlessly demeans the rights of parenthood.  It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child.  We do not inquire whether leaving a child with his parents is "in the best interest of the child." It sometime is not; he would be better off raised by someone else.  But parents have their rights, no less than children do.  This father wants to raise his daughter, and the statute amply protects his right to do so.  There is no reason in law or policy to dilute that protection."

In the final analysis, if an Indian parent wants the protection afforded an Indian parent by sections 1912(d) and 1912(f), that parent must have a pre-existing custodial relationship with the child.