On Point blog, page 1 of 1
COA affirms in appeal challenging TPR plea and disposition
Sheboygan County DH&HS v. A.W., Sr., 2024AP907, District II, 10/30/24 (one-judge decision; ineligible for publication); case activity
The COA rejects A.W., Sr.’s claims that the circuit court failed to take testimony to support the finding of unfitness when he pled no contest to grounds, and that the court’s decision to terminate his parental rights at disposition was an erroneous exercise of discretion.
COA affirms circuit court’s decision to proceed under voluntary termination of parental rights statute, Wis. Stat. § 48.41
A.K.B. v. J.J.G., 2024AP1116, 10/9/24, District II (one-judge decision; ineligible for publication); case activity
“Jay” appeals from orders terminating his parental rights and denying his postdisposition motion, arguing the circuit court erroneously exercised its discretion when it terminated his parental rights under the voluntary termination statute, Wis. Stat. § 48.41, rather than applying the hearing procedure for involuntary terminations as set forth in § 48.422. The COA affirms.
COA affirms TPR jury verdict based on harmless error analysis
C.T.L. v. M.L.K., 2023AP402, District III, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)
The court of appeals confronts two alleged errors stemming from M.L.K.’s TPR jury trial and affirms based on harmless error.
Defense Win! Invalid waiver of right to counsel results in reversal of TPR order
Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity
Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1).
Circular reasoning upheld as mother testifies about father’s suspected heroin use during TPR trial
N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity
Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.
How to beat the “harmless error” rap
For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal. They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless. This detailed, well-researched outline walks you through the history of the “harmless error” doctrine and offers ideas for how to beat it in various situations.
TPR – Failure to Assume Parental Responibility; GAL Appointment for Parent; Parent’s GAL: Dispositional Recommendation – Harmless Error
Waukesha County DH&HS v. Jennifer L. H., 2010AP2990, District 2, 7/13/11
court of appeals decision (1-judge, not for publication); for Jennifer L.H.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity
Evidence held sufficient to prove Jennifer’s failure to assume parental responsibility as TPR ground, notwithstanding that she lived with the child and helped raise him from birth until he was removed from her home: “although Jennifer did live with Kurt for most of his life,
TPR – Right to Counsel – Violation, Structural Error
State v. Darrell K., 2010AP1910, District 1, 10/19/10
court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee
Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.
¶10 The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.
Appellate Procedure – Harmless Error: Denial of Right to Counsel – TPR
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.
Appellate Procedure – Harmless Error Analysis – TPR – Exclusion of Expert 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.