TERMINATION OF PARENTAL RIGHTS, CHIPS, PATERNITIES
Updated 1/27/10
Guardianship
Guardianship/Protective Placement – GAL Interview of Ward outside Presence of Adversary Counsel
Jennifer M. v. Franz Maurer, 2010 WI App 8
Issue: “(W)hether a circuit court has authority to order a represented adult ward to submit to an interview with her guardian ad litem, outside the presence of her counsel and over her attorney’s objection, where the order also requires the guardian ad litem to report the content of the interview to the circuit court,” ¶1.
Holding:
¶11      The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis. Stat. § 54.42(1)(b) includes the ward’s right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court.  A ward placed under a guardianship of the person has been found incompetent in that “the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.”  Wis. Stat. § 54.10(3)(a)2.  This fact enhances the disparity in legal skill between the guardian ad litem and the ward.  Additionally, the presence of adversary counsel during an interview with the ward’s guardian ad litem prevents the guardian ad litem from manipulating the distinction between the ward’s best interests and his or her expressed interests, inquiries that may be fraught with tension.  See Knight, 2002 WI 27, ¶¶53-54.  Finally, to the extent such an interview may reveal information protected by the attorney-client relationship, the right to counsel helps prevent the inadvertent disclosure of privileged information.
As to how disputes between adversarial and “best-interest” counsel might be refereed, the court says, ¶12 n. 6: “Though in our view the rules governing the guardian ad litem interview are similar to those governing oral depositions in which evidence is taken subject to objection, see Wis. Stat. § 804.05(4)(b), oversight of the parties’ conduct is a matter reserved to the circuit court’s discretion.” As for SPD representation in this context, the Operations Manual explains: “The State Public Defender does not provide representation in proceedings to have a person declared incompetent under section 54.34, Stats., unless the guardianship proceeding is coupled with a petition for protective placement or protective services.” See § 977.05(4)(i)8.
TPR
TPR – Indian Child Welfare Act, 25 U.S.C. § 1912(f) – Applicability: Not Limited to Physical Custody
Monroe County DHS v. Luis R., 2009 WI App 109
For Luis R.: Devon M. Lee, SPD, Madison Appellate
Issue: Whether ICWA, 25 U.S.C. § 1912(f), which requires likely serious emotional or physical damage to the child from continued parental custody, applies to placement outside the parental home when the TPR proceeding is initiated.
Holding:
¶18      The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA. I.P. v. State (In re Interest of D.S.P.), 166 Wis. 2d 464, 472-73, 480 N.W.2d 234 (1992). Thus, in a TPR proceeding involving an Indian child, the County must meet the substantive and procedural requirements of the ICWA as well as proving grounds for termination of parental rights as required by state law. See id. at 473-74.

¶19      The parties’ dispute over the application of 25 U.S.C. § 1912(f) arises out of the meaning of the italicized words in the phrase “that the continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.” The County, as we understand it, construes “custody” to mean “physical custody” and “continued custody” to mean that the parent must have physical custody when the TPR petition is filed. Luis asserts that the court in In re Interest of D.S.P. approved the application of subsec. (f) in a situation where the child had not been in the care of a parent for a significant amount of time and that the D.S.P. court’s reasoning supports the application of subsec. (f) here.

¶23      We agree with Luis that the supreme court in D.S.P. apparently construed “custody” to mean physical custody, while also implicitly construing “continued custody” not to require that the parent have physical custody at the time of the TPR proceeding. We also agree with Luis that we may not modify the supreme court’s analysis on this point by altering the meaning of “custody.” This argument must be addressed to the supreme court.

¶29      We conclude that 25 U.S.C. § 1912(f) applies in this case even though Vaughn was placed with a foster family at the time this action was filed and had been living there for at least three years.

TPR – Indian Child Welfare Act, 25 U.S.C. § 1912(f) – “Qualified Expert Witnesses” Requirement
Monroe County DHS v. Luis R., 2009 WI App 109
For Luis R.: Devon M. Lee, SPD, Madison Appellate
Issue: Whether the social worker expertise “beyond the normal” is required to qualify as an expert within the meaning of the ICWA, 25 U.S.C. § 1912(f).
Holding:
¶37      Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C. § 1912(f) requires that social workers must have qualifications comparable to those of the two testifying there. However we do read D.S.P. to construe subsec. (f) to mean, consistent with the House Report, that a social worker must have expertise beyond the normal social worker qualifications.  

¶38      Turning to Mahan’s qualifications, we first observe that, while she no doubt has specialized knowledge as a result of her bachelor’s and master’s degrees in criminal justice, that knowledge does not relate to the showing required by 25 U.S.C. § 1912(f)—assessing the likelihood of serious emotional or physical damage to Vaughn if he is returned to his father. Second, while she is an experienced social worker, her experience in monitoring the conditions imposed on parents for the return of their children does not suggest something beyond normal social work qualifications or functions.

¶39      We next consider paragraph D.4(b) of the BIA guidelines recognizing that they are not binding. Mahan’s qualifications do not fall within D.4(b)(i) or (ii). As for D.4(b)(iii), “a professional person having substantial education and experience in the area of his or her specialty,” this is a general description and the intended scope is not clear. However, to read it to include social workers with normal qualifications would be inconsistent with the clear statement of Congressional intent. [16] See H.R. Rep. No. 95-1386 at 22.

TPR – Indian Child Welfare Act, 25 U.S.C. § 1912(f) – Burden of Proof
Monroe County DHS v. Luis R., 2009 WI App 109
For Luis R.: Devon M. Lee, SPD, Madison Appellate
Issue/Holding:
¶51      We conclude that Congress plainly did not intend to mandate a particular burden of proof for the showing required in 25 U.S.C. § 1912(d). The trial court here instructed the jury that it must be convinced by clear and convincing evidence that the requirements of subsec. (d) were met. That is the burden of proof applied for finding grounds for termination of parental rights under Wisconsin law. See Wis. Stat. §§ 48.31, 48.424(2). Luis does not develop an argument that, if the ICWA does not mandate the beyond a reasonable doubt standard for the § 1912(d) showing in TPR cases, we should nonetheless apply that heightened standard. Accordingly, we conclude the circuit court properly instructed the jury on the burden of proof for special verdict questions 5 and 6, which incorporated the requirements of subsec. (d).
TPR – No Contest Plea, Withdrawal of – Prima Facie Showing re: Grounds
Oneida Co. DSS v. Therese S., 2008 WI App 159
For Therese S.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):
¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination. Additionally, we conclude that in order for the court’s explanation of potential dispositions to be meaningful to the parent, the parent must be informed of the statutory standard the court will apply at the second stage. That is, the court must inform the parent that “[t]he best interests of the child shall be the prevailing factor considered by the court in determining the disposition ….” Wis. Stat. § 48.426(2).

¶17      We decline, however, to adopt the expansive approach proffered by Therese, requiring courts to inform parents in detail of all potential outcomes, including all alternatives to termination. …

TPR – No Contest Plea, Withdrawal of – Prima Facie Showing re: Potential Disposition
Oneida Co. DSS v. Therese S., 2008 WI App 159
For Therese S.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶8    Regarding the first alleged deficiency, it is undisputed that the circuit court never established on the record whether Therese understood she would be found unfit to parent as a result of her plea. Therese contends the circuit court was required to inform her of this direct consequence because Wis. Stat. § 48.424(4) required the court to find Therese unfit.

¶9        The County responds that, because of the Wis. Stat. § 48.422(7)(c) factual basis requirement, a parental unfitness finding is not automatic and, therefore, not a direct result of the plea. The County is mistaken. Section 48.422(7) requires courts to establish a factual basis “[b]efore accepting an admission ….” Thus, once the court accepts a no contest plea at the grounds stage, the parent must be found unfit. See Sheboygan County v. Julie A.B, 2002 WI 95, ¶26, 255 Wis.  2d 170, 648 N.W.2d 402.

¶10      We conclude that in order for no contest pleas at the grounds stage to be entered knowingly and intelligently, parents must understand that acceptance of their plea will result in a finding of parental unfitness. …

TPR – Withdrawal of Element (Parental Unfitness) from Jury Consideration Amounted to Denial of Jury Trial
Manitowoc County HSD v. Allen J., 2008 WI App 137
For Allen J.: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶1        Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied, but Allen argues that he did not personally agree to withdraw his jury demand on the element. We put this appeal on hold pending the supreme court’s resolution of Walworth County DHHS v. Andrea L.O., 2008 WI 46, __ Wis. 2d __, 749 N.W.2d 168. In that case, the supreme court held that the parties’ stipulation to one element of parental unfitness did not constitute a withdrawal of a jury trial demand because the jury, rather than the court, answered the verdict question and there was ample evidence to support the element. Id., ¶3. The court went on to hold that even if the stipulation had been a withdrawal of the jury trial demand on the element, it was not error for the circuit court not to hold a personal colloquy with the defendant where the defendant personally agreed to the stipulation in open court, the stipulation was to a single, undisputed, paper element, and there was ample uncontroverted evidence to support the stipulated element. Id., ¶4.

¶2        We now reverse and remand for a new trial. We conclude that the stark factual differences between this case and Andrea L.O. call for this result. First, here the court, not the jury, answered the verdict question on the stipulated element, and so, as Manitowoc County rightly concedes, Allen did not receive a jury trial on the issue. Thus, the dispositive question becomes whether it was error for the court to withdraw the element from the jury’s consideration. We conclude that it was because the crucial facts relied on by the Andrea L.O. court are missing here. At no time did Allen agree to the stipulation in open court. Second, though the element in consideration is a “paper” element, the required documentary evidence is missing from the record, and the evidence adduced is not so “ample” as to make the element “undisputed and undisputable.” We therefore also conclude that the court’s error was not harmless.

TPR – Elements, Ground of Continuing Need of Protection and Services, Generally
Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification
For Andrea L.O.: Suzanne Hagopian, SPD, Madison Appellate
Issue/Holding:
¶6        There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the County Department of Social Services must have made a reasonable effort to provide services ordered by the court. Third, the parent must fail to meet the conditions established in the order for the safe return of the child to the parent's home. Fourth, there must be a substantial likelihood that the parent will not meet the conditions of safe return of the child within the 12-month period following the conclusion of the termination hearing. [3]
TPR – Stipulation to Element: Does Not Amount to Withdrawal of Jury Demand, Where Jury Instructed on That Element
Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification
For Andrea L.O.: Suzanne Hagopian, SPD, Madison Appellate
Issue/Holding: Stipulation to a TPR elements did not constitute withdrawal of the demand for a jury trial, where the element was submitted to, and found by, the jury under the instructions and special verdict form, ¶¶18-24.
The court approvingly analogizes to State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999) (stipulation to burglary element of nonconsent didn't amount to waiver of right to jury determination of the element where jury instructed to accept any stipulation as conclusively proven, but also instructed that guilt required finding nonconsent beyond a reasonable doubt).
TPR – Stipulation to Element: Does Not Amount to Withdrawal of Jury Demand, Personal Colloquy with Parent not Required (Under Specific Facts of Case)
Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification
For Andrea L.O.: Suzanne Hagopian, SPD, Madison Appellate
Issue: Whether stipulation to a TPR element amounted to withdrawal of jury demand such that personal colloquy with the parent was necessary to effectuate the stipulation.
Holding:
¶34      Although N.E. and S.B. concern withdrawal of the demand for a jury trial, they are distinguishable from the facts presented here. In each of those cases, a party's attorney withdrew a prior demand for a jury trial while the defendant was not present. In N.E., the attorney did not consult with the juvenile before withdrawing the demand, and in S.B., the attorney withdrew the demand without S.B.'s knowledge or consent. Here, however, the stipulation between the parties took place in Andrea's presence. Moreover, Andrea's attorney asked her in open court whether she understood the issue and whether she was willing to stipulate that Junior was adjudged in need of protection or services and that he had been placed out of her home for six months or more. Andrea answered yes.

¶35      A second important difference between the present case and N.E. and S.B. is that this case does not involve a complete withdrawal of the demand for a jury trial. The parties agreed to stipulate to one element of the ground for termination, but the demand for a jury trial on the other three elements was unaffected. Importantly, Andrea's focus in the case was not on the first element. Her attorney admitted that the first element was "not seriously in dispute." Rather, he explained that the focus was on the fourth element, that is, whether there was a substantial likelihood that Andrea would not meet the conditions for return within a year. In contrast, N.E. and S.B. involved the withdrawal of the demand for a jury trial on all elements, rather than a stipulation regarding a single element that was not in dispute.

The court also stresses, ¶¶34-41, that the stipulation was not only on an uncontested point but a “paper ground,” that is, “expressly provable by official documentary evidence.” The court rejects any suggestion, though, that the holding “allows circuit courts to decide paper elements that go to a jury independent of a stipulation,” ¶41 n. 6. When all is said and done, the following factors seem to inform the result: the stipulation addressed a “paper element,” ¶46; TPRs being civil, the right to jury is purely statutory, ¶ 47; any error in removing the element form jury consideration would have been harmless, ¶48; in any event, the element in question was submitted to the jury, ¶53. The case, then, appears to be fact-specific, as the court indeed suggests:
¶51      We do not decide, however, the effect of Villareal and Hauk beyond the facts presented here. Thus, we do not address how courts should use criminal cases involving stipulations to shape decisions concerning stipulations in TPR proceedings.

...

¶55      Nonetheless, while we do not require it, we urge that circuit courts in TPR proceedings consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury's consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Although no personal colloquy is required here because Andrea received a jury trial, we have not addressed whether it would be required in other contexts.

¶56      Termination of parental rights proceedings are "among the most severe forms of state action" that involve the "'awesome authority of the State to destroy permanently all legal recognition.'" Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis.  2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996). We have previously determined that such proceedings may "require heightened legal safeguards against erroneous decisions." Oneida County Dep't of Soc. Servs. v. Nicole W., 2007 WI 30, ¶32, 299 Wis.  2d 637, 728 N.W.2d 652 (quoting Evelyn C.R., 246 Wis. 2d 1, ¶21)).

The court thus explicitly declines to address the “broad question posed by the court of appeals” in its certification request, which is as follows (¶¶27-28): <"Does the rationale and holding of N.E. v. DHSS, a juvenile case arising out of Wis. Stat. ch. 48 (2003-04), govern a termination of parental rights (TPR) case such that a parent must personally withdraw his or her prior demand for a jury trial?"
“Meaningful Participation” by Remote Webcam
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16
For Teodoro E.: Ann T. Bowe; Leslie E. Schmerin
Issue/Holding: A deported father’s participation in the TPR proceeding by a webcam system was “meaningful,” given that he could see and hear witnesses, be seen by the court, and communicate privately with counsel and with aid of an interpreter, ¶¶10-19.
State v. Lavelle W., 2005 WI App 266 (telephone hookup not functional equivalent of personal presence, therefore participation by phone not meaningful), distinguished:
¶15      Further, the system that the trial court used here is plainly and significantly different from the simple telephone setup at issue in Lavelle W. One obvious distinction is that Teodoro was able to see both the witness and a wider view of the entire courtroom. Further, Teodoro’s attorney was able to communicate with him privately which, as we noted in Lavelle W., is a key component of meaningful participation. Lavelle W., 288 Wis. 2d 504, ¶8. In fact, in Rhonda R.D., a case unacknowledged by Teodoro, we held that a telephone setup that allowed the parent to consult privately with his lawyer afforded the parent meaningful participation in the termination proceedings. Rhonda, 191 Wis. 2d at 701-03.

¶16      … If the circuit court had insisted on Teodoro’s physical presence, which was apparently impossible, there is no telling how long things would have continued in the posture that they were in: Teodoro in Mexico and the children in foster care and in legal limbo, their future unknown. This would have been grossly unfair to the children, as well as contrary to the legislative directive that TPR cases proceed in a timely fashion. See Rhonda R.D., 191 Wis. 2d at 698-99.

Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007) (counsel’s remote appearance by phone at defendant’s guilty plea proceeding amounted to denial of counsel altogether) also distinguished:
¶19      Just as with Lavelle W., the procedures adopted by the circuit court in this case distinguish it from Deppisch. The record shows that Teodoro could consult privately with his attorney. Moreover, his attorney was physically present in the courtroom. Thus, unlike in Deppisch, there was nothing preventing the court from keeping an eye on either Teodoro or his counsel. [4] We reject Teodoro’s ineffective assistance argument.
Think this case won’t be cited in future criminal cases where the defendant must make a “remote” appearance? Or that local facilities won’t eventually go to webcam instead of phone hookups?
Conditions – Possibility of Meeting: Deported Parent
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16
For Teodoro E.: Ann T. Bowe; Leslie E. Schmerin
Issue/Holding: Conditions imposed for non-termination of a deported parent’s children weren’t impossible, notwithstanding parent’s inability to return to country:
¶23      But as the circuit court noted, “Mexico is not prison” and Teodoro remained free to work on and meet many of the conditions of return. As an example, the first condition, “Show that you are interested in your child,” includes subparts that deportation should not have prevented Teodoro from meeting, such as “[t]alk to doctors, teachers, therapists and other people who care for your child to learn what your child needs … [and] [p]ay child support on a regular basis.” The trial court found that Teodoro did neither of these things, either in Mexico or earlier when he was in Waukesha; indeed, during the time that his wages were being garnished to pay child support, he sometimes asked for and received the money back from the children’s mother. We affirm the circuit court’s holding that the grounds for Teodoro’s termination were not based solely on impossible conditions and that Jodie W. therefore does not govern this case.
Disposition – Discretion Properly Exercised
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16
For Teodoro E.: Ann T. Bowe; Leslie E. Schmerin
Issue/Holding: The trial court properly exercised discretion in terminating rights:
¶25      Teodoro finally argues that at the dispositional stage, the trial court erroneously determined that termination of his parental rights would be in the best interests of the children. This determination is committed to the circuit court’s discretion, and will not be overturned unless that discretion is erroneously exercised. See Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶¶42-43, 255 Wis. 2d 170, 648 N.W.2d 402. Teodoro acknowledges some of the evidence that the court relied on in coming to its decision, including Adrianna’s psychologist’s opinion that there was not a substantial relationship between Teodoro and Adrianna and various indications that the children are doing much better since their separation from Teodoro. Teodoro’s only argument is to say that the court inappropriately “blamed” him for everything and to make the conclusory statement that “Adrianna and Antonio should be allowed to live with their father in Mexico.” He has presented nothing that would cause us to question the circuit court’s discretionary determination that termination is in the children’s best interest. We affirm.
Parental Responsibility / Fitness, § 48.415(6) – Relevance of Father’s Conduct After Discovery He Is Child’s Father
State v. Bobby G., 2007 WI 77, reversing summary order
Issue/Holding:
¶5        For the reasons set forth, we hold that in determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under Wis. Stat. § 48.415(6), a circuit court must consider the biological father's efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case proceeded under an erroneous interpretation of the statute. Accordingly, the facts were not fully developed; to the extent facts were developed, these facts and their import are in dispute. The parties disputed whether Bobby G. assumed parental responsibility after he learned of his paternity but before adjudication of the grounds for termination. Accordingly, with facts in dispute, the circuit court erred as a matter of law in granting partial summary judgment. Moreover, Bobby G. requested a jury trial, which the circuit court denied because it erroneously found no material facts or inferences therefrom in dispute. Neither the circuit court nor this court can deprive Bobby G. of a jury trial by deciding the factual dispute. [6]  
 [6] A circuit court may direct a verdict in the grounds phase of a termination of parental rights proceeding. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).
The opinion weighs in at 71 pages, ¶155¶¶, much of it consumed by lengthy recitation of the legislative history. In any event, if you provide TPR representation you’ll want to read the whole thing. If there’s a meta-message it might be: just because summary judgment is authorized doesn’t mean it’s favored.

¶90      Bobby G.'s responses to the State's interrogatories should have alerted the circuit court that Bobby G. was trying to establish a parental relationship with Marquette after he had reason to believe that he was Marquette's father. Summary judgment was inappropriate because material facts were presented disputing the State's claim that Bobby G. never assumed parental responsibility for Marquette.

And very much relatedly: “The legislature expressly intended to protect, whenever appropriate, the biological family unit,” ¶57. If there’s any doubt on these points, chew on the opening lines of the dissent:

¶111    Could a cocaine- pushing, woman-battering man, who does not even know about the existence of his child, have accepted and exercised "significant responsibility for the daily supervision, education, protection and care of the child"? Wis. Stat. § 48.415(6)(b) (2003-04).  

¶112    If that is too close of a call, consider the same question, only the person admitted he never exercised responsibility for the daily supervision of the child, never exercised responsibility for the education of the child, never paid child support, and never met the child. Plus, he has been incarcerated for the vast majority of the child's life.

¶113    The circuit court answered no. Such a person has not assumed parental responsibility pursuant to Wis. Stat. § 48.415(6). The majority concludes the circuit court erred. "[T]he circuit court in the instant case proceeded under an erroneous interpretation of the statute" by failing to "consider the biological father's efforts undertaken after he discover[ed] that he is the father but before the circuit court adjudicate[d] the grounds of the termination proceeding." Majority op., ¶5.

¶114    The plain language of the Children's Code contradicts the majority's interpretation of § 48.415(6).  Accordingly, I respectfully dissent

Competency of TPR Court – Statutory Time Limits, Generally
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue/Holding:1: Generally, compliance with a statutory TPR time limit is mandatory, such that non-compliance results in lost circuit court competency absent an applicable exception, ¶5, citing Dane Co. DHS v. Susan P.S., 2006 WI App 100, ¶63.
Issue/Holding2: The following is a non-exhaustive list of examples of lost judicial competency for lapse of a time limit without obtaining a proper extension under § 48.315, ¶9:
  •         The 30-day time limit for holding an initial hearing. Wis. Stat. § 48.422(1); Brown County v. Shannon R., 2005 WI 160 ¶¶2, 74, 81-82, 286 Wis. 2d 278, 706 N.W.2d 269; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7-10.
  •         The 45-day time limit for holding a fact-finding hearing. Wis. Stat. § 48.422(2); State v. Robert K., 2005 WI 152, ¶¶2, 16-17, 286 Wis. 2d 143, 706 N.W.2d 257; Matthew S., 282 Wis. 2d 150, ¶¶1-2, 13-18.
  •         The 45-day time limit for holding a dispositional hearing. Wis. Stat. § 48.424(4); State v. Quinsanna D., 2002 WI App 318, ¶¶2, 34-37, 259 Wis. 2d 429, 655 N.W.2d 752; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7, 11-12.
Competency of TPR Court – Statutory Time Limits – Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue Whether failure to enter the written TPR dispositional order within the 10-day time limit of § 48.427(1) causes the circuit court to lose competency over the case.
Holding:: A circuit court loses competency to proceed in a TPR when it fails to comply with a time limit between critical adjudication stages, ¶8, but entry of the written order was not such a “critical stage”:
¶11      … We conclude, however, that the circuit court here did not lose competency because it fully adjudicated the TPR proceeding and made all the decisions it was required to make in its oral decision and order prior to expiration of the 10-day time limit.

¶12      After hearing evidence at a dispositional hearing, a circuit court must make a number of decisions. The decisions that must be made depend on the circumstances and are set forth in several statutes. …

¶13      … Here, in light of both the court’s decision to terminate Dyanne’s parental rights and Artavia’s custody and adoption needs, three rulings were required … The circuit court’s oral decision contains all three rulings. …

¶14      Having made these rulings, there was nothing left for the circuit court to adjudicate. It follows that the “critical stages within the adjudication process” concluded when the court rendered its oral decision. Moreover, because the 10-day time limit in Wis. Stat. § 48.427(1) had not passed when the circuit court ruled orally, any subsequent failure to comply with that time limit did not deprive the circuit court of competency. The net effect of our holding is that, as long as the required rulings are made within the 10-day time limit, even if they are oral, the court does not lose competency.

TPR – Sufficiency of Warnings, Prior CHIPS Proceeding
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue/Holding:
¶19      Dyanne acknowledges that the CHIPS order makes reference to “warnings” and contains the statutory language defining the possible grounds for termination. She also does not dispute that the order contains the conditions that were necessary for Artavia’s return. Dyanne’s argument is limited to an assertion that the order fails to sufficiently connect the warning language to the statutory language. She asserts: “what is missing is relevance of the statutory language at the end of the [CHIPS] dispositional order.” Dyanne states: “There is no bridging language to put the statutory language in context. There is nothing to tell the parent ‘If you fail to do this, your parental rights could be terminated.’”

¶21      Dyanne apparently reads M.P. to require an explanatory provision like the one quoted in M.P. Although such a provision may be helpful and advisable, we agree with the department that the CHIPS order in this case is sufficient under Wis. Stat. § 48.356(2).

TPR -- Partial Summary Judgment (as to Fact-Finding Hearing) – Basis and Proof – Prior TPR, Grounds for
Oneida Co. DSS v. Nicole W., 2007 WI 30, affirming unpublished decision
For Nicole W.: Martha K. Askins, SPD, Madison Appellate
Issue: Whether partial summary judgment against Nicole was properly granted under Wis. Stat. § 48.415(10) (prior involuntary TPR within 3 years) when the prior termination order did not state the explicit § 48.415 ground relied on.
Holding:
¶2      We conclude that Wis. Stat. § 48.415(10)(b) does not require proof of which § 48.415 ground was relied upon for a prior termination of parental rights because the phrase, "on one or more of the grounds specified in this section," in § 48.415(10)(b) refers to proving only that the prior termination was an involuntary termination. …

¶19      Wisconsin Stat. § 48.415(10)(b) does not require proof of which of the available 12 grounds set out in § 48.415 was the basis for the involuntary termination because the phrase, "on one or more of the grounds specified in this section," is meant as only a general directive that assures the termination of rights was involuntary.  In regard to the sufficiency of a prior order that can be used as grounds under § 48.415(10), there is no need for the order to specify which ground was employed, as any of the grounds set out in § 48.415 is sufficient to satisfy the requirement of paragraph (10)(b). [9]


 [9]  Of course the issue may be different if the termination of Nicole's parental rights to Rockey were being appealed.  In that case, the reviewing court could be asked to ascertain whether sufficient proof was admitted by the circuit court to support the court's determination that a specific ground was proved by clear and convincing evidence.  However, an appeal of the termination of Nicole's parental rights to Rockey is not before us.
TPR -- Prior TPR as Grounds, Based on Default Judgment
Oneida Co. DSS v. Nicole W., 2007 WI 30, affirming unpublished decision
For Nicole W.: Martha K. Askins, SPD, Madison Appellate
Issue: Whether partial summary judgment against Nicole was properly granted under Wis. Stat. § 48.415(10) (prior involuntary TPR within 3 years) when the prior termination order was based on her default for failing to personally appear at the fact-finding hearing.
Holding:
¶27      We agree with the court of appeals that to require more evidence than a prior involuntary termination order to satisfy Wis. Stat. § 48.415(10) would be tantamount to permitting a collateral attack on the prior order.  A collateral attack on a judgment is "an attempt to avoid, evade, or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it."  Zrimsek, 8 Wis.  2d 1, 3 (citing 5 Callaghan's, Bryant, Wisconsin Pleading and Practice (3d ed.), p. 373, § 37.97). [12]

¶28      In general, "a judgment is binding on the parties and may not be attacked in a collateral action unless it was procured by fraud."  State v. Madison, 120 Wis.  2d 150, 154, 353 N.W.2d 835 (Ct. App. 1984) ….

¶33      … (W)e have applied Sixth Amendment concepts in the context of termination of parental rights proceedings, even though the proceedings are civil in nature and the Sixth Amendment does not apply to civil proceedings.

¶34      When a claim of denial of the right of counsel is made, the claimant has the burden to make a prima facie showing of a violation of the right to counsel. …

¶35      However, we need not determine whether the prior Waukesha County termination of rights order may be collaterally attacked due to a violation of the right to counsel because Nicole made no prima facie showing that she was denied the right of counsel in the termination of rights proceeding regarding Rockey. …

TPR – Default as Sanction for Failure to Appear
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
For Shirley E.: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding: ¶13 n. 3:
The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had "appeared" at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768.

The circuit court found Shirley E. in default as a sanction for failing to comply with its order to attend a hearing in person. Before a circuit court may enter a default on the ground that a party failed to comply with a court order, the party's conduct must be egregious or in bad faith. Evelyn C.R., 2001 WI 110, ¶17, 246 Wis.  2d 1, 629 N.W.2d 768; Johnson v. Allis Chalmers Corp., 162 Wis.  2d 261, 276, 470 N.W.2d 859, 878-79 (1991). The circuit court made no finding that Shirley E.'s conduct was egregious or in bad faith before finding her in default. The circuit court ordered the sanction of default on March 8, 2005 ——the first time Shirley E. failed to appear in person after being ordered to do so on February 14, 2004. Shirley E. ultimately failed to attend personally three other hearings in a five month period; her attorney attended all of them. The circuit court failed to consider Shirley E.'s attorney's explanations about why Shirley E. was not present in person, including difficulty of coming to Wisconsin from out of the state, her status as a parolee, and her lack of funds. A circuit court has discretion in imposing a sanction for noncompliance with an order but must make the appropriate findings to support a sanction of default.

The issue of the egregious nature of Shirley E.'s conduct has not been raised in this court, and we will not address it further.

TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
For Shirley E.: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)
Holding:
¶41      We do not accept the State's position for three reasons. First, Wis. Stat. § 48.23 does not provide a right to counsel only to parents who appear in person. Second, case law clearly bars a circuit court from finding a parent in default before taking evidence on the ground alleged for the termination of parental rights. Accordingly, the circuit court’s finding of default in the present case was erroneous, and the circuit court had no power to bar the parent or parent's counsel from participation at the fact-finding stage. Third, in any event, the circuit court erred in barring counsel from the disposition phase.

¶46      In sum, the statute directs the right to counsel, and no statutory provision deprives a parent's counsel from presenting evidence and arguing at a termination of parental rights proceeding when the parent has "appeared" but has not appeared in person.

¶50      In the present case, as in Evelyn C.R., the circuit court erroneously found the mother in default before taking any evidence on the grounds alleged for termination of her parental rights. Because the circuit court should not have found Shirley E. in default before hearing evidence in the fact-finding phase, Shirley E.'s attorney should not have been barred from participating. Thus, the circuit court violated Shirley E.'s statutory right to counsel in the fact-finding phase.

¶51      In the present case, in contrast to Evelyn C.R., the circuit court heard evidence in the fact-finding phase after it found the mother in default and dismissed the mother's counsel. But the circuit court heard only the State's evidence, having erroneously barred Shirley E. by her attorney from challenging the State's evidence and presenting her evidence at the fact-finding phase. As a result of the circuit court's ruling dismissing Shirley E.'s counsel, the circuit court precluded counsel from participating on Shirley E.'s behalf.

¶53      Third, even if we were to view the circuit court's finding of Shirley E. in default as valid, Shirley E. could still appear at the disposition phase in person or by counsel. The circuit court thus erred in dismissing Shirley E.'s counsel from this hearing. 

Good, concise prefatory discussion re: right to counsel, ¶¶31-38, as well in as in the succeeding ¶¶. For that matter, entire discussion suffused with necessity for adversarial input. Note, though, the 3-Justice concurrence (more accurately described as partial dissent) which agrees with need for reversal as to disposition but would uphold default as to grounds, ¶¶66-85. Shirley E. thus prevailed by the skin of her teeth, but more importantly the “concurrence” identifies the significance of the majority holding, close though the vote might have been:
¶83      The gist of the majority opinion is to reaffirm the decision in Evelyn C.R. that a circuit court has no inherent or statutory authority to enter a true default judgment as a sanction in a termination of parental rights case. It must always take evidence to support the judgment and make findings on the requisite burden of proof. But more important, the decision determines that the failure of a parent to appear in person may not be sanctioned to limit the role of the parent's attorney in the fact-finding proceedings. The attorney may challenge the state's evidence by motion, objection, or cross-examination, or present alternative evidence, and even demand a jury trial. [46] A parent's defiance or indifference, as reflected in the parent's consistent non-appearance in court, does not work any forfeiture of the parent's rights.
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
For Shirley E.: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding:
¶57      The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W. v. Monroe County Department of Human Services, it is "the duty of the court to determine by careful questioning that the waiver of counsel[ ]. . . is knowledgeable and voluntary." [38] The circuit court conducted no such inquiry here.
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
For Shirley E.: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding:
¶63      Depriving a parent of the statutory right to counsel in a termination of parental rights proceeding deprives the parent of a basic protection without which, according to our legislature, a termination of a parental rights proceeding cannot reliably serve its function. The fairness and integrity of the judicial proceeding that the legislature has established for termination proceedings has been placed in doubt when the statutory right to counsel is denied a parent. Accordingly, the denial of the statutory right to counsel in the present case constitutes structural error.

¶64      We thus hold that it was prejudicial error per se for the circuit court to dismiss Shirley E.'s attorney from the proceedings and to prevent counsel from participating in the termination of parental rights proceeding.

Voluntariness of Plea to Grounds for Termination, Procedure for Challenging – Generally
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
For Jodi W.: Joseph W. Voiland, Lewis W. Beilin, Rebecca E. Frihart (Pro Bono Project)
Issue/Holding: The circuit court must undertake a colloquy with the parent tracking § 48.422(7); the parent must know the rights being waived; and on a challenge to the plea the parent must make a prima facie showing that the colloquy was defective and also allege a lack of understanding of the omitted information, ¶¶25-26, citing State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) and Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607.
Typically, of course, where the plea is under review the parent filed a motion to withdraw plea but in this instance the case arrived at the appellate level via a no-merit report without a trial-level motion to withdraw plea. The court nonetheless perceives no procedural impediment to review, ¶¶27-28.
Voluntariness of Plea to Grounds for Termination – Apparent Confusion of Parent
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
For Jodi W.: Joseph W. Voiland, Lewis W. Beilin, Rebecca E. Frihart (Pro Bono Project)
Issue/Holding: The trial court failure to address numerous alterations made by the parent to the written plea questionnaire which created discrepancies with respect to the plea, and further failure to resolve the parent’s equivocations during the oral plea colloquy established that the parent’s no contest plea to grounds for TPR was not knowing, intelligent, or voluntary, ¶¶29-38.
Substantive Due Process – Grounds for Termination – Impossible to Meet Condition for Return
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
For Jodi W.: Joseph W. Voiland, Lewis W. Beilin, Rebecca E. Frihart (Pro Bono Project)
Issue: Whether finding of parental unfitness in a TPR, grounded on a condition for the child’s return that was impossible to meet when imposed (namely that the parent set up a suitable residence within 12 months even though she was incarcerated and would not be released before then), violates substantive due process.
Holding:
¶49      Like the Nevada Supreme Court, we similarly conclude that a parent's incarceration does not, in itself, demonstrate that the individual is an unfit parent. See J.L.N., 55 P.3d at 956. We further conclude that a parent's failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground for finding a parent unfit.Id. These conclusions are required by the Wisconsin and United States Constitutions, which preclude a state from terminating a parent's fundamental right without an individualized determination of unfitness. Stanley, 405 at 649.

¶50      Because we interpret statutes to be constitutional if possible, Hezzie, 219 Wis. 2d 848 at 862 (citation omitted), we also conclude that Wis. Stat. § 48.415(2) requires the court to evaluate the particular facts and circumstances relevant to the parent and child involved in the proceeding. Our conclusions do not render a parent's incarceration irrelevant. We simply conclude that a parent's incarceration is not itself a sufficient basis to terminate parental rights. Other factors must also be considered, such as the parent's relationship with the child and any other child both prior to and while the parent is incarcerated, the nature of the crime committed by the parent, the length and type of sentence imposed, the parent's level of cooperation with the responsible agency and the Department of Corrections, and the best interests of the child. See P.P., 279 Wis. 2d 169, ¶30 (recognizing that the termination of parental rights of the incarcerated parent was "grounded in a lack of fitness on the part of [the parent]. . . . [T]he finding was based on [the parent’s] sexual assault and extreme abuse of his own children."). See also J.L.N., 655 P.3d at 960.

¶51      We therefore conclude that in cases where a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent’s incarceration, Wis. Stat. § 48.415(2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A contrary interpretation would render the statute unconstitutional. Compare Hezzie, 219 Wis. 2d at 862 (citation omitted).

Because the trial court relied for termination solely on Jodi’s incarceration, without considering other factors relevant to her circumstances, her right to substantive due process was violated, ¶¶52-56. In other words, both the court-ordered conditions for return and also the trial court’s evaluation of Jodi’s failure to meet those conditions, were not narrowly tailored to meet the State’s interest in protecting the child, ¶55.
TPR – Self-Representation – Standards
Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06
For Susan P.S.: William E. Schmaal, SPD, Madison Appellate
Issue/Holding1: The same “self-representation competency standards developed in … criminal cases” applies to TPRs, ¶¶9-16.
Standards summarized, ¶¶17-23. Though much of this recitation is fairly abstract, the following embellishment of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980) may be of interest, ¶20 n. 3: “we understand Pickens to be saying that a lack of legal skills, by itself, does not disqualify a person, but if a person has pertinent legal skills, that fact may weigh in favor of competency.”
Issue/Holding2: Rescission of self-representation on the 2nd day of trial based upon 1st-day performance upheld where the person’s bipolar disorder manifestly affected her performance, ¶¶25-44 (“Her questions and arguments were nonsensical. Her behavior was erratic and unruly.”); and, her “courtroom demeanor and tone of voice were inappropriately aggressive,” ¶46.
The court also suggests strongly, if not holds outright, that standby counsel may offer an opinion as to the pro se litigant’s competence, and that a decision to rescind self-representation may be based on such an opinion, ¶53 n.6, and accompanying text. (“We are aware of no legal or logical support for the proposition that the right to self-representation is denied by the mere act of standby counsel opining that a pro se litigant is incompetent.” Ah, you may wonder: What about client confidentiality? What about State v. Jeffrey J. Meeks, 2003 WI 104? That case holds that with respect to a client’s competency during prior representation, “disclosure of even non-verbal communications … violates the attorney-client privilege," ¶36. Could be that the court doesn’t see standby counsel as bound by client confidentiality, but that seems too much of a stretch. (For one thing, the relationship may be hybridized but it is nonetheless an attorney-client relationship in some form. And, not to press the point, but for authority that standby counsel does have at least a limited effective-assistance obligation, see for example People v. Blair, 115 P.3d 1145 (Cal. 2005).) Could be that the court perceives Meeks as limited to disclosure of prior representation; and that with regard to a current case, State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) (counsel ethically obligated to reveal doubts as to client’s competency) holds sway. But note that Meeks itself considered that possibility (¶46), and held that Johnson permits counsel to do no more than merely raise the issue of competency: “An attorney's duty under Johnson demands a very narrow and limited breach of the attorney-client privilege. The attorney is merely obligated to ‘raise the issue [of competency] with the trial court.’ Johnson, 133 Wis. 2d at 220. There is no requirement that the attorney testify about his or her reasons for raising the issue or the opinions, perceptions, or impressions that form the basis for his or her reason to doubt the client’s competence.” Most likely, then, the court of appeals simply didn’t consider the potential impact of Meeks. If it had, it would almost surely been bound to deem standby counsel’s opinion as to competency—which does more than merely raise the issue and is instead necessarily based on disclosure of verbal and non-verbal client communications—off-limits under Meeks. For that matter, ignoring Meeks is just about the only workable solution for one of the most ill-considered, sloppily thought out decisions in recent memory. General discussion, here.
TPR – Self-Representation – Conducting Hearing in Absence of Pro Se Respondent
Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06
For Susan P.S.: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Conducting part of a hearing in the absence of pro se respondent (who appeared before the hearing’s conclusion and conceded she had been late because she hadn’t been “ready in time”) did not deprive her of the right to self-representation, ¶¶55-62.
TPR – Self-Representation – Competency of Court – Delay in Disposition Hearing
Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06
For Susan P.S.: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return, ¶¶63-75.
TPR: Right to "Meaningfully Participate" in Hearing
State v. Lavelle W., 2005 WI App 266
Issue/Holding:
¶2        Birth-parents “have constitutionally protected rights to raise their children as they see fit, and these rights may only be circumscribed if the government proves that there is a ‘powerful countervailing interest.’” Richard D. v. Rebecca G., 228 Wis. 2d 658, 661, 599 N.W.2d 90, 92 (Ct. App. 1999) (quoted sources and one internal quotation mark omitted). Thus, “unless the birth-parent has either done something, or failed to do something, to trigger erosion of the constitutional wall that prevents the State from intruding on the birth-parent’s constitutionally protected rights, the fact that the child might be better off somewhere else is an insufficient reason to breach that wall.” Id., 228 Wis. 2d at 663 n.4, 599 N.W.2d at 93 n.4. Accordingly, “a proceeding to terminate parental rights addresses a fundamental right which requires judicial protection.” D.G. v. F.C., 152 Wis. 2d 159, 166, 448 N.W.2d 239, 242 (Ct. App. 1989). But “judicial protection” is meaningless unless a person whose fundamental rights may be abridged has an “opportunity to be heard at a meaningful time and in a meaningful manner.” Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34, 42 (Ct. App. 1995); see also D.G., 152 Wis. 2d at 167, 448 N.W.2d at 243 (“We view the ability of a respondent in a termination of parental rights proceeding to meaningfully participate as a right which requires similar protection by the court.”). Whether participation has been “meaningful” is a constitutional fact subject to our independent review. Rhonda R.D., 191 Wis. 2d at 700, 530 N.W.2d at 42. The trial court, however, has discretion on how to guarantee that a birth parent’s participation in proceedings to terminate his or her parental rights is meaningful. See D.G., 152 Wis. 2d at 162–163, 448 N.W.2d at 240–241.
TPR: (Imprisoned) Parent's Telephonic Appearance and Right to "Meaningfully Participate" in Hearing
State v. Lavelle W., 2005 WI App 266
Issue: Whether the right of a parent imprisoned  in the federal system to “meaningfully participate” in a TPR proceeding was violated when he was not physically produced in court but, instead, was limited to telephonic participation.
Holding: Where various mechanisms could have been utilized to produce the father yet weren’t attempted, and the telephone hook-up was, under the circumstances, not entirely adequate, the father’s right to be present at the hearing was violated:
¶7        There is nothing in the Record that indicates that any of these procedures, either under the applicable statutes or under the regulations, were explored before resorting to what Lavelle W.’s lawyer called the “last resort”—the telephone. Moreover, because the State is the petitioner, D.G. recognizes that the trial court would have been within its discretion to order the State to absorb the costs of producing Lavelle W. for the hearings. D.G., 152 Wis. 2d at 168–169, 448 N.W.2d at 243.

¶8        Our discussion so far would be academic if the telephone solution allowed Lavelle W. to meaningfully participate in the termination-of-parental- rights proceedings. See Rhonda R.D., 191 Wis. 2d at 701–702, 530 N.W.2d at 42–43 (whether ability to participate is “meaningful” must be determined case-by-case). Although the trial court concluded that Lavelle W. was able to meaningfully participate, that is a matter, that, as noted, we review de novo. In our view, any alternative to a parent’s personal presence at a proceeding to terminate his or her parental rights must, unless either the parent knowingly waives this right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence: the parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on. The Record here reveals that at times Lavelle W.’s ability to hear the proceedings faded in and out, and, at least at one point, was temporarily interrupted by static.

¶9        Although it may very well be that Lavelle W. was able to hear significantly more than he was unable to hear, that is not sufficient because periodic or sporadic inaudibility, both of which marred Lavelle W.’s connection to the proceedings, significantly truncates a party’s ability to fully comprehend what is going on, and thus hinders the ability to get a feel for the proceedings—a mix of spoken words and body language—and, therefore, meaningfully consult with his or her lawyer concerning not only the testimony but also what everyone else may be doing in court. In sum, we conclude that Lavelle W. was not able to meaningfully participate in the proceedings, and, accordingly, we must vacate the orders terminating his parental rights and remand to the trial court for further proceedings consistent with this opinion.

Is the holding limited to the facts? Limited, that is, to instances of static on the phone line? Perhaps; but that would be an awfully crabbed reading. Note that the court stresses the need to fully comprehend courtroom dynamics, including “a mix of spoken words and body language”: not, one would think, something transmissible by data bits.

An interesting procedural note: Lavelle W. raised a separate claim that the evidence was insufficient to support the termination order, an argument the court declines to reach in light of its reversal on the meaningful-partcipation ground, ¶1. In criminal cases, it is clear “that where a defendant claims on appeal from a conviction that the evidence is insufficient to sustain the conviction, the appellate court is required to decide the sufficiency issue even though there may be other grounds for reversing the conviction that would not preclude retrial,” State v. Ivy, 119 Wis.2d 591, 610, 350 N.W.2d 622 (1984). The rationale is that double jeopardy would preclude retrial if the evidence were insufficient, but a TPR is civil and therefore double jeopardy—which requires a criminal “offence” as a trigger—doesn’t apply. Presumably, that distinction informed the court’s reticence to reach the sufficiency question, though the reasoning isn’t spelled out. On the other hand, claim and issue preclusion [facets of double jeopardy analysis] are certainly available as TPR defenses, Brown County DHS v. Terrance M., 2005 WI App 57, ¶¶8-9; and see also State v. Kenneth Parrish, 2002 WI App 263, relative to SVP proceeding. Not to make this overly complex, but relief on sufficiency grounds would result in dismissal of the pending petition, not retrial on it. An argument thus might be made that an Ivy-type rationale ought to apply in this context, such that the court should similarly reach the merits the merits of a sufficiency claim.

TPR – Appellate Procedure -- State’s Appeal, Commenced by GAL
State v. Lamont D., 2005 WI App 264
Issue/Holding: ¶1 n. 4:
Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont’s contention.  WISCONSIN STAT. § 48.235(7) plainly states that the guardian ad litem “may appeal, may participate in an appeal or may do neither.” This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State’s interests are aligned with those of the guardian ad litem.
TPR, Sufficiency of Evidence -- Jury Verdict That State Failed to Prove Grounds
State v. Lamont D., 2005 WI App 264
Issue Whether the State sufficiently proved grounds to support TPR such that the court should change the jury’s special verdict to the contrary.
Holding: “Because the record contains contradictory evidence and a key witness did not testify, and because it is possible the jury did not believe that the State proved the six-month period of abandonment, the trial court’s refusal to change the verdict answer or to grant a new trial was not ‘clearly wrong,’” ¶1.
¶19      We are not oblivious to the many contradictions in Lamont’s testimony, and we observe that the jury’s verdict might not have been our verdict. However, the first step in a termination of parental rights proceeding is the fact-finding hearing “to determine whether grounds exist for the termination of parental rights….” Wis. Stat. § 48.424(1). “During this step, the parent’s rights are paramount.” Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 Wis. 2d 170, 648 N.W.2d 402 (citation omitted). “During this step, the burden is on the government, and the parent enjoys a full complement of procedural rights.” Id.

¶20      In reaching our conclusion that the trial court’s holding should be affirmed, we note that the consequences of termination are profound, id., ¶23, as“‘[t]ermination of parental rights’ means that, pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed,” Wis. Stat. § 48.40(2). Additionally, “[b]ecause termination of parental rights interferes with a fundamental liberty interest, we apply strict scrutiny and require the state to show that termination is narrowly tailored to serve a compelling state interest.” Monroe County DHS v. Kelli B., 2003 WI App 88 , ¶8, 263 Wis. 2d 413, 662 N.W.2d 360, aff’d, 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831. As required, we give the trial court’s decision substantial deference and conclude the trial court was not “clearly wrong” in refusing the State’s and the guardian ad litem’s requests. See Helmbrecht, 122 Wis. 2d at 110. Therefore, we affirm.

Prejudicial Error – Exclusion of Expert TPR Opinion Testimony
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.
Holding:
¶71      The State's interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.'s constitutionally protected due process right to be heard in a meaningful manner. It would have imposed no burden on the State to allow Shannon R. to present her qualified expert witnesses.

¶72      In light of the important constitutional right at stake, the State's interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.'s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court's erroneous preclusion of Dr. Wellens's expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding. We therefore hold that the circuit court committed prejudicial, reversible error.

Very good discussion of right to due process generally in a TPR, particularly with regard to opportunity to mount a meaningful defense,¶¶56-67. Interestingly, the court says nothing about harmless error analysis (where the beneficiary of the error can show harmlessness by showing beyond reasonable doubt that the error didn’t impact the result). The court treats the issue as if it’s one of structural error (reversal is automatic, without regard to impact)—the parent’s fundamental right to defend against the petition was thwarted and reversal automatically follows. The court doesn’t put it that baldly, but that nonetheless seems to be the essence of it.
Admissibility of Evidence -- Expert Opinion Testimony on TPR Parent’s Ability to Meet Condition for Child’s Return
Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate
Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.
Holding:
¶40      In deciding the issue of foundation, the circuit court seemed fixated on the psychological tests that Dr. Wellens administered and did not consider the psychologist's experience, training, interview with Shannon R., and review of the voluminous case history. Thus the circuit court did not consider all the relevant facts.

¶41      Dr. Wellens could address Shannon R.'s abilities and her future behavior based not only on his training and review of her voluminous case history but also on his personal interview with and testing of Shannon R. and from listening to the opinions of others. …

¶42      The circuit court erred by not applying the proper legal standard.  It failed to recognize that courts ordinarily allow psychologists to opine about the future behavior of an individual. …

¶43      … The circuit court seemed to be saying that only those experienced or trained in social work have the expertise to testify in termination of parental rights cases about the substantial likelihood of a parent's meeting the conditions for return of a child within the 12-month time period. Such a ruling is an error of law. Thus the circuit court erred as a matter of law in declaring that Dr. Wellens, a psychologist, would know so little about the subject that he should not be permitted to give his opinion. …

Concise summary is difficult. This is very much a fact-bound case; keep in mind that the county was allowed to ask its experts whether Shannon “would be able to meet” the conditions for return (the answer of course being, No); but that Shannon was denied the opportunity to ask her expert precisely the same question (the answer would have been, Yes).
Competency of Court and Time Limit, § 48.422(2) -- Continuance Beyond Time Limit for Fact-Finding Hearing – Factors
State v. Robert K., 2005 WI 152, affirming unpublished opinion
Issue: Whether a TPR court lost competency to proceed because the fact-finding hearing was held more than 45 days after the contested plea hearing, the time limit set by § 48.422(2).
Holding: A continuance of the fact-finding hearing beyond the 45-day limit may properly be granted under § 48.315(2), as to which good cause was established on this record, on the basis of lawyer and litigant scheduling problems.
Recent lost-competency cases distinguished, ¶32 n. 26:  Sheboygan County DSS v. Matthew S., 2005 WI 84 (extension not granted on record in open court); State v. April O., 2000 WI App 70 (time limit extended by circuit court only after it expired); in this instance, the trial court granted the extension before the time limit expired, in open court and on the record. As to the exercise of discretion itself, the four factors applicable to evaluating good cause for continuance are “(1) good faith of the moving party; (2) prejudice to the opposing party; (3) prompt remedial action by the dilatory party; and (4) the best interest of the child,” ¶35. The court stresses the “sheer number of persons involved in the hearings,” along with the trial “cycles” in Milwaukee County, which limited available dates, ¶¶37-38. The court’s conclusion then, for these and other reasons, may be fairly said to be fact-specific. Indeed, the court “reiterate(s) the importance of complying with the statutorily mandated time period…. Therefore, it is incumbent upon a circuit court to minimize the uncertainty in a child's life and to protect constitutional rights by concluding a proceeding on termination of parental rights with dispatch.” ¶57. Too fact-specific, apparently, for the 3-Justice concurrence, which expressed “concern that the majority does not adequately recognize the problems of court congestion and that such congestion may, in appropriate instances such as this, constitute good cause for a continuance,” ¶60. Congestion alone, it may therefore be said in light of this express concern, isn’t enough. The court, incidentally, holds open “the issue upon which the circuit court ruled, that is, whether a guardian ad litem's acquiescence in the circuit court's setting the fact-finding hearing beyond the 45-day period fulfills the consent requirement of Wis. Stat. § 48.315(1)(b),” ¶4.

Competency of Court and Time Limit, § 48.422(2)
Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
For Rachel B.: John J. Grau
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.
Holding:
¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court.  The court of appeals erred in extending the holding in Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of such a mandatory statutory time limitation under Wis. Stat. ch. 48. The circuit court did not hold the fact-finding hearing within the time limits established by § 48.422(2), and never granted a proper extension or continuance pursuant to Wis. Stat. §§ 48.315(1)(a) and (2), [2] and thus it lost competency to proceed before it ordered the termination of Rachel B.'s parental rights. Accordingly, we reverse the decision of the court of appeals, which had affirmed the order of the circuit court.

¶31      We also conclude that recent changes to the Children's Code do not affect our decision in this case, nor did the changes overrule B.J.N. and April O. sub silentio....

¶36     Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children's Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315. In this case, for example, the court perhaps could have granted a continuance if it had recognized good cause for the delay in open court or during a telephone conference on the record. Without such action, however, there is no choice for us but to follow the plain language of the statutes, and to hold that the court lost competency to proceed before it ordered the termination of Rachel B.'s parental rights. …


      [2] "The general requirements of § 48.315(2) control all extensions of time deadlines under the Children's Code." State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927. 

     Wisconsin Stat. § 48.315(2) states: "A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases."

Grounds -- Abandonment by Biological Parent, Occurring Prior to Adjudication as Parent, as Ground for Termination, §§ 48.02(13), 48.415(1)(a)3
State v. James P., 2005 WI 80, affirming, 2004 WI App 124
For James P.: Carl W. Chessir
Issue: Whether biological father's parental rights could be terminated on the ground of “abandonment” where he was not adjudicated as father until after alleged periods of abandonment.
Holding:
¶15 We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of "parent" in § 48.02(13), as he is a "biological parent," notwithstanding that he has not officially been adjudicated as the child's biological father. Because such an individual satisfies the definition of "parent," he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father, assuming he has failed to establish a "good cause" affirmative defense to the ground of abandonment.
Grounds -- Denial of Physical Placement: § 48.356(2) Warnings in Underlying Order Unnecessary
Kimberly S.S. v. Sebastian X.L., 2004 WI App 83
For Kimberly: Richard J. Auerbach
For Sebastian: Jon C. Manzo
Issue: Whether § 48.415(4) requires proof that an underlying family court order denying physical placement contained the warnings required by § 48.356(2).
Holding:
¶7. The plain language of Wis. Stat. § 48.415(4) requires proof that the notices in Wis. Stat. § 48.356(2) were provided only when the underlying order was issued in juvenile court. We agree with Kimberly that the first usage of "or" in § 48.415(4)(a) separates the paragraph into two self-contained clauses, one pertaining to family court orders and the other applicable to juvenile court orders. Thus, we read the notice requirement provision to be a part of the clause pertaining to juvenile court orders, and as inapplicable to the clause pertaining to family court orders. …
TPR – Substantive Due Process
Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision
For P.P.: Timothy A. Provis
Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.
Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right, ¶20. In this instance, termination was based on the statutory ground in § 48.415(4) (one-year elapsed since order denying contact), but given that such an order was preceded by various proceedings which reflected on the parent’s fitness, the termination did not violate due process:
¶32. Only after all the above described steps took place, was P.P. faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under § 48.415(4) involve an evaluation of a parent's fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The full statutory scheme that precedes the implementation of § 48.415(4) must be evaluated as well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives. In our view, P.P. has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty.
The point of contention is whether or not these prior steps explicitly required a finding of unfitness; the majority says they did, the dissenters say no, ¶¶73, 79. The danger identified by the dissenters is that once a no-contact order has been entered, then a “mandatory irrebuttable presumption” of unfitness follows after the lapse of one year, ¶87. No doubt. But keep in mind that P.P. pleaded no contest, and that his challenge was therefore necessarily up-hill (if for no other reason than that he had to show the statutory scheme unconstitutional); the court thus stressed:
¶25 … We do not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. However, P.P. pled no contest to the ground asserted to terminate his parental rights, and in so doing, he relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children. Accordingly, we do not reach the question of whether an as-applied challenge to the validity of a § 48.415(4) order will lie.6
TPR – Issue Preclusion, Applicability of Doctrine
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. (The court remands for determination of whether issue preclusion is appropriate in this instance, without attempting to reach the merits on appeal, ¶ 10 and id. n. 5, citing Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224, 594 N.W.2d 370 (1999) for the issue-preclusion test.)
TPR – Substitution of Judge
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding:
¶11. The trial court ruled and the County now argues that Terrance's substitution request was untimely because it was not filed before "hearing of any preliminary contested matters" under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request "either before or during the plea hearing ...." We agree with Terrance.
--TPR – No-Contact, Occurring Prior to Adjudication as Parent, as Ground for Termination, §§ 48.02(13), 48.415(1)(a)3
State v. James P., 2004 WI App 124, PFR granted 10/5/04
For James P.: Carl W. Chessir
Issue/Holding:
¶3 WISCONSIN STAT. § 48.415(1)(a)3 provides that among the grounds “for the termination of parental rights” is that “[t]he child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.” James P. contends that although, as found by the trial court in its extensive and well-reasoned written decision, “[i]n early 2002, as a result of DNA testing, James P. was adjudicated the father of Chezron,” he was not Chezron’s “parent” as that term is used in § 48.415(1)(a)3 when he “failed to visit or communicate with” her. Thus, as noted, he argues that § 48.415(1)(a)3 does not apply.

¶4 As material here, WIS. STAT. § 48.02(13) defines “parent” for the purposes of WIS. STAT. ch. 48 as:

...

• “a biological parent” or

• “a husband who has consented to the artificial insemination of his wife” or

• “a parent by adoption” or

• “a person acknowledged under s. 767.62 (1) or a substantially similar law of another state” “[i]f the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60” or

• a person “adjudicated to be the biological father” “[i]f the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60.”

… We agree that the fact of biological parenthood does not turn on whether it is recognized, found, or adjudicated, any more than the fact that a tree has fallen in the forest depends on someone’s perception of the crashing sound, or, in another context, gravity’s existence depended on Sir Isaac Newton’s formulation of its principles.

¶5 … [A]s the trial court recognized, James P. was always Chezron’s biological father, even before he was formally adjudicated as such.

¶6 … Although James P. interposes law-school-question- type analyses in an attempt to eschew legal responsibility for the periods during which he had no contact with Chezron, he was in fact Chezron’s biological parent when she was born and he has never denied that. We affirm.

--TPR – Summary Judgment, Unfitness Phase
Steven V. v. Kelley H., 2004 WI 47, affirming 2003 WI App 110, 263 Wis. 2d 241, 663 N.W.2d 817
For Kelly H.: Philip J. Brehm
Issue/Holding:
¶5. We conclude that partial summary judgment in the unfitness phase of a TPR case is available where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31 have been met. An order granting partial summary judgment on the issue of parental unfitness where there are no facts in dispute and the applicable legal standards have been satisfied does not violate the parent's statutory right to a jury trial under Wis. Stat. §§ 48.422(4) and 48.31(2), or the parent's constitutional right to procedural due process. 6. Accordingly, partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, and, taking into consideration the heightened burden of proof specified in Wis. Stat. § 48.31(1) and required by due process, the moving party is entitled to judgment as a matter of law. We overrule Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994), to the extent that it outright prohibited summary judgment in TPR proceedings. The circuit court's use of summary judgment procedure was not error.

¶31. The principles underlying the decision in Elizabeth W. were unquestionably sound and well-established; we conclude, however, that the court's holding was overbroad. Neither due process nor the TPR statutes require an absolute prohibition on summary judgment in the grounds or unfitness phase of a TPR proceeding. That a parent has contested the termination of his or her parental rights does not automatically mean there are material facts in dispute regarding the grounds for unfitness.

¶32. The code of civil procedure applies to "all civil actions and special proceedings" unless a "different procedure is prescribed by statute or rule." Wis. Stat. § 801.01(2). Parental rights termination proceedings under Chapter 48 are civil proceedings, and this general rule of civil procedure applicability has been cited in the context of TPR cases on numerous occasions….

¶33. There is nothing in the TPR statutes that explicitly or implicitly prohibits the use of summary judgment procedure under Wis. Stat. § 802.08 in the unfitness phase of a TPR case. Nor do the TPR statutes prescribe a procedure different from Wis. Stat. § 802.08 for TPR cases in which there is no genuine dispute of fact on the issue of unfitness under Wis. Stat. § 48.415. Kelley argues that a court order granting partial summary judgment on parental unfitness conflicts with the right to a jury trial at the fact-finding hearing, which she contends is an absolute right under the statutes, Wis. Stat. §§ 48.422(3), (4), and 48.31(2), and as a matter of due process. We disagree.

(The court rejects a due process-based absolute right to jury trial on the grounds for termination. ¶¶40-44.)
--TPR – Right to Advice As To Right to Continuance To Consult With Counsel Regarding Judicial Substitution, § 48.422(5)
Steven V. v. Kelley H., 2004 WI 47, affirming 2003 WI App 110, 263 Wis. 2d 241, 663 N.W.2d 817
For Kelly H.: Philip J. Brehm
Issue/Holding:
¶50. Parties to TPR proceedings may request a continuance of the initial hearing to consult with counsel about judicial substitution. Wis. Stat. § 48.422(5). However, the circuit court does not have an affirmative duty to advise parties of this right. Wis. Stat. § 48.422(1).
(Court withdraws language to contrary effect in M.W. and I.W. v. Monroe County Dep't of Human Servs., 116 Wis. 2d 432, 342 N.W.2d 410 (1984). ¶¶51-52.)
-- TPR – Grounds, § 48.415(9) – Commission of Serious Felony Against Child – Effect of Pending Appeal of Conviction
Reynaldo F. v. Christal M., 2004 WI App 106, PFR filed 4/21/04
For Christal M.: Chris L. Hartley
Issue/Holding:
¶7. Petersen argues that the trial court erred when it dismissed the termination ground based on Wis. Stat. § 48.415(9m). Christal responds that the trial court's interpretation of the statute was correct--that anytime a parent's direct appeal of a conviction is pending, there is no final judgment to form the basis for grounds to terminate under § 48.415(9m). Christal's argument was premised on the holding in Jennifer V., wherein this court interpreted the term "conviction" as used in Wis. Stat. § 48.415(5) to mean a conviction after the right of direct appeal had been exhausted. Jennifer V., 200 Wis. 2d at 681. The trial court agreed that this holding created a "bright line" rule, which prohibited a termination based on a conviction if the parent's direct appeal was still pending. Based on the reasoning that follows, we clarify the holding in Jennifer V. to prohibit termination based on a conviction when a direct appeal is still pending only if the pending appeal has raised issues challenging the parent's guilt. Accordingly, we reverse the trial court's order and remand for a new trial.

¶13. Here, it is undisputed that Christal was found guilty of serious battery of one of her children. A judgment of conviction was entered. She filed a direct appeal challenging solely the length of her sentence. There is no possibility that the appeal will result in an innocent parent losing rights to her child. Christal's guilt has been finally determined. Thus, Jennifer V. does not apply to this case. Jennifer V.'s holding is limited to appeals based on guilt or innocence. We hold that when a parent's pending appeal does not raise issues of guilt or innocence, the term "final judgment of conviction" used in Wis. Stat. § 48.415(9m) means the judgment of conviction entered by the trial court, either after "a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest." Wis. Stat. § 972.13(1).

-- TPR – Evidence – Death of Child’s Sibling During Same Incident for Which Termination of Rights Sought
Reynaldo F. v. Christal M., 2004 WI App 106, PFR filed 4/21/04
For Christal M.: Chris L. Hartley
Issue/Holding:
¶15. Petersen also argues that the trial court erroneously exercised its discretion when it excluded all evidence related to the existence of the life and death of Reynaldo's twin brother, Raymon. Christal responds that it was reasonable for the trial court to exclude this evidence. We conclude that the trial court's decision constituted an erroneous exercise of discretion.

¶19. We conclude that the story is incomplete without the evidence related to Raymon. Reynaldo was the second baby thrown. The facts demonstrate that Christal first threw Raymon and then buckled Raymon into his car seat. She then picked Reynaldo up and threw him toward his car seat. Because the trial court excluded all evidence of Raymon, Christal's counsel was able to present disingenuous arguments to the jury, including the argument that what occurred to Reynaldo was the result of a