Monday, July 29, 2013

TPR ACTIONS IN WISCONSIN: THE DIFFERENCE BETWEEN INVOLUNTARY AND VOLUNTARY PROCEEDINGS



By:  John J. DiMotto


INTRODUCTION


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.

INVOLUNTARY TPR ACTION

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.

VOLUNTARY TPR ACTION

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. 

CONCLUSION

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.

34 comments:

  1. Thank you for doing this blog. I was wondering if you know if a voluntary TPR might prevent someone from adopting or foster parenting in the future? My ex-husband and I have had an impossible battle coparenting our two adopted children due to our divorce and the kid's reactive attachment disorder (it was an older child adoption and their was much trauma in their past). I am seriously considering voluntarily terminating my parental rights as having either one of us as a parent is a better situation than joint custody where they manipulate us and just opt to stay at the house where their not in trouble versus facing the consequences of their actions. My ex refuses to terminate his rights and I suspect the state wouldn't let him as he has a good income and my current husband would be hesitant to adopt the kids.

    However, my current husband and I only have one child and might want to adopt or become foster parents in the future. Do you know if I voluntarily terminate my legal rights with my current teenage children if it would prevent us from opening our home to other children in the future.

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    1. First, courts are very reluctant to ever terminate the parental rights of only one parent unless it is being done to facilitate a step parent to adopt the child. The circumstance that you describe is one in which a one parent termination is not looked upon favorably. Second, if a person has done a voluntary termination of an adopted child, it is quite likely that that person would not be approved to adopt again. Before making any decision, given your complicated circumstances it would be wise to consult with an attorney who has expertise in TPR and private adoption cases.

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  2. I greatly appreciate your prompt reply, especially catching my question about future adoptions. Do you think the fact that I (the mother) has never had to pay child support in the 8 years since our divorce and my ex is very financially self-sufficient (making more than $85,000/year) would make it worthwhile to spend the money to see if we might be one of those rare circumstances where a judge would allow it? I have been a stay-at-home mom for several years with child support determined based on my "potential earnings." I have never collected any public assistance and am remarried with my current husband being the primary breadwinner for our household.

    Money is pretty tight and I'm not up (financially or emotionally) for the court battle my ex is once again threatening (the last one was hell). I also have never collected any public assistance. Would these specifics makes a mutually agreed upon 'termination of my rights' a little more likely to be considered by a judge? I would be happy to take full custody of the kids or allow my ex full custody, but battles and manipulation with joint custody is killing all of us, especially the kids.

    Thanks again for any additional thoughts you may have on this.

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    1. I am not in a position to give you advice on how to proceed. You would need to talk to a lawyer. If your economic circumstances are tight, you should consider calling the Milwaukee Bar Association Lawyer Referral Service. They can refer you to a lawyer with TPR and Adoption expertise. I believe the first consultation with that lawyer is either free or at a reduced rate.

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  3. In the case where it is one parent asking for a TPR, not an agency, so a step parent can step in to adopt when the biological father has had no contact for 3 years, how likely will that be granted if the biological parent contests?

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  4. The parent who is seeking the TPR so that a step parent can adopt must prove a "ground" by clear and convincing evidence. One such grounds would be Abandonment for six months. This would require showing that the parent did not visit or communicate with the child or the family with the child for a continuous six month time frame. Another ground would be Failure to Assume Parental Responsibility. This would require showing that the parent did not accept nor exercise significant responsibility for the daily supervision, education, protection or care of the child. Section 48.415 of the Wisconsin Statutes sets forth these and other potential grounds. To determine if you have a ground with sufficient evidence to meet the burden of proof, you should consult with an attorney with expertise in TPR law.

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  5. But, I'm afraid maybe I do not have the grounds to. I love my son with all my heart, and all I want is the best for him. I know what it would do to him if he was forced to be with people he doesn't know. Not only that, the bio father is very unstable and cannot provide for him. All his friends and even his brother (who also still lives at home with his mom) do drugs and steal, which is very much documented through the courts. His mothers husband is an alcoholic. They have had police there multiple times because of fights. I just don't wabt my son to have to go through all of that. Even if the bio were to get on his feet, his outside influences are horrible and that won't ever change. Even if he stops the drugs, etc...his family and friends still do it. I fully believe I am doing what is right for my son, but I don't want to go through all of it if what I consider to be the best for my son, if the courts won't see it that way. I know he is not a good person, I wish he was! I fully believe in fathers rights, I have 50/50 with my two other children (who have also, unfortunately, witnessed the abuse)
    Thank you so much for your time! I truly appreciate it!

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    1. Your circumstances are rather complicated. I would suggest that you contact an attorney who has experience in filing private TPR actions to see whether he or she believes you should pursue a TPR action.

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  6. My question comes for a long and complicated fostering story of 2 full, biological brothers. If social service workers fail to file termination to the father after 18 months of zero contact with the youngest child since paternity was established and zero contact for 24 months with the eldest whom was also abandoned by father (when he had custody) is the father still able to enter the picture and say he wants to be involved? Rights have been filed now but technically the case is open and he is making contact.
    On the personal (inside this tornado) side, it feels like a social worker is being played for him to have any contact feels sick and wrong but is this possible?
    Father is also a violent felon (domestic).
    Also, the 2 boys have been living with mothers brother ( 2 1/2 years) and has been ruled the best place for the boys to be. Is it just that the state of Wisconsin will always rule in reunification or relationships with birth parents?

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    1. Unless parental rights are terminated by a court, a parent can "reenter the peicture and seek to be involved." However, if there was a paternity action in which the father was adjudicated or if there is a CHIPS case where a court has entered orders involving visitation,, the court can be asked to revisit the custody, placement or visitation orders. The State and the courts do not always rule for reunification. The standard is best interests of the child.

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    2. I also have a question involving involuntary TPR and visitation. Can a guardian request specific visitation because the birth father is a violent felon with repeat cases of battery to domestic, child, and officer? If he plead guilty to a battery crime verses a child and the child abuse was only read-in, may that be considered and brought to a judge's attention? Can a guardian request TPR for the eldest child who was already neglected by birth father but keep the case open for the youngest child who was not, or do the two children become a "duo" in the court's eyes? Thank-you.

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  7. If a person is appointed as a guardian, the guardian ordinarily sets the visitation schedule. The guardian is to provide "reasonable" visitation taking into consideration any court orders (from paternity actons or criminal court actions or guardianship actions )that affect visitation. TPR can be sought for one but not another child, hoiwever, that gets more complicated. It is best to consult wsith an attorney with special expertise in TPR cases for advice specific to ones set of circumstances.

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  8. The birth mother's rights were involuntarily terminated in Wisconsin. Is it possible for her to get her bilogical daughter back 9 months after the adoption was final?

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    1. Chapter 48 sets forth the appellate process in TPR actions..

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  9. I was wondering if you could provide an overview of the average time and process to finalize an involuntary TPR once it is commenced. We are trying to adopt at-risk children in foster care who have had a TPR initiated. The parents are not making the changes needed to improve home conditions or the ability to care for the children. I have seen the information regarding TPR laws but nothing about the realities of timing and other details. We would appreciate some sense of how this works, even though we know each case is unique.
    Thank you.

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    1. Under the time limits set forth in Chapter 48 of the Wisconsin Statutes, TPR actions are supposed to be given priority and be moved along quickly. From the date of filing, the first phase: the fact finding phase which focuses on the conduct of the parents, should be concluded within 75 days of the filing of the petition. If grounds are established, the second phase: the dispositional phase which focuses on the best interest of the child should be concluded within another 45 days. So, in a perfect world, from start to finish, the case should be done in 120 days, subject to an appeal. An appeal can take another 150 to 240 days. In the real world, that does not happen. The trial court proceedings usually take closer to 240 days, and if there is an appeal another 150 to 240 days. The reason for the "added" length of time is congested court calendars, the paucity of lawyers who want to defend parents in TPR cases and the difficulty of co-ordinating the calendars of the prosecuting attorney, guardian ad litem for the child, the attorneys for both parents and the court calendar. You need to be extremely patient because we do not live in a perfect world.

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  10. So if my step daughter's biological mother hasn't had contact with her verbally in 2 years and physically in 3 years, would it be difficult to TPR? My husband and I have talked about it lately but we hear it is almost impossible.

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    1. While it can be difficult, if the reason you want to pursue TPR is for purpose of a stepparent adoption, you may be successful. However, you should consult with an attorney with expertise in TPR cases regarding your specific circumstances.

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  11. Can the courts terminate just one parents' rights

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  12. Can an involuntary TPR be change to a voluntary one?

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    1. Before a determinations is made with respect to the involuntary TPR -- Yes

      After a determination is made -- possibly, if the Petitioner consents to vacating the involuntary TPR order and allowing the parent to do a voluntary TPR

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  13. Thanks for you answer!!! just to give you more content to the situation.
    Birth mother is young, right now the state is involved and baby is currently place with birth Grandmother, but birth grandmother can’t keep the baby.
    Birth grandmother contacted me and my husband and offer us to adopt this little baby, and until now the plan is getting license by the state and become baby foster parents, with the hope to adopt her once the 15 months went by.

    But … could birth mother go to court and terminate her right voluntary? Or we have to wait for the 15 months to go by and get her right involuntary terminated?
    Birth mother and birth grandmother are both in agreement with the adoption plan.

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    1. If birth mother and birth father are both willing to do a Voluntary TPR, it can be done much quicker.

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  14. What are the typical time between events before an involuntary termination goes to final TPR?
    Like first we have the 15 months, and then what happen? do birth parents get more opportunities after the 15 months? or at the 15 months is final?
    I been told that can take all the way up to 1 year and 1/2 from the moment the state decided to remove the rights, so I'm trying to figure a timeline.

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    1. In Wisconsin, while the statutes call for expedited proceedings, because of crowded court calendars and the limited number of lawyers who feel comfortable doing these cases it can take from 1 to 1 1/2 years to complete these cases after the termination action is filed which is usually after 15 months has passed without parents meeting conditions of return. Additionally if the parents do not like the results they can appeal. An appeal can take anywhere from nine months to a year. However every case is different.

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  15. TPR has been filed and wondering which way the courts will go? Bio mom isn't able to get reunified with children but dad is. However , dad hasn't done the things he needs to do for reunification . Also, had some ups and downs through the months

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    1. There is no way to predict how a TPR will turn out. If the petitioner proves the grounds allegedand if after a dispositional hearing the court finds it is in the best interest of the child to terminate, that would be the outcome.

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  16. My 14 year old is living with his father in WI, we moved in August with the intention that he wanted to move with us. He changed his mind the day before we moved and now refuses to speak to me on the phone and is not willing to visit. I don't have the $ to go to court, I don't have the $ to pay child support, and I don't have a job (starting classes in January and I am looking for work). I'm considering TPR as I don't know what other options I have. I could take my son based upon medical neglect by his father, but -- again -- I don't have the $ to fight in court and what would I really win since he decided to stay with his dad and refuses to see or speak to me. It breaks my heart to even consider this, but I'm at such a loss, I don't know what else to do.

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  17. if parent does volunteer TPR how long after can we adopt the child or does the case go on for?

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    1. It usually moves along once a social service study is completed.

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  18. If the State Supreme court refuses a petition for review, can the birth parent appeal to the Federal Supreme court, or are they done?

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    1. There is no easy answer to your question. It would be best to consult with a lawyer with TPR expertise to examine the particulars of the case who could then determine if there is an issue that could be reviewed by the Federal courts.

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