On Point blog, page 11 of 20
No due process violation in applying TPR grounds
State v. T.S.R., 2017AP548, 3/20/18, District 1 (one-judge decision; ineligible for publication); case activity
T.S.R. appeals the termination of her parental rights to her daughter. She argues that the two statutory grounds on which she was found unfit–continuing CHIPS and failure to assume parental responsibility–violate due process as applied to her.
SCOW to decide whether directing a verdict for the State at the close of its case is structural error
State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity
Issues:
1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?
2. If the error in this case is not structural, then was it harmless?
Court of Appeals rejects incarcerated mom’s challenges to TPR
State v. J.W., 2017AP689-690, 2/27/18, District 1 (1-judge opinion, ineligible for publication); case activity
J.W. appealed a circuit court order terminating her parental rights to her 2 children and argued that (1) her trial lawyer misadvised her to enter a no-contest plea to grounds for termination and didn’t try hard to find a relative to place her children with, and (2) she did not knowingly agree to adjourn proceedings to work on conditions for return of her children–conditions that were impossible to meet.
An interesting opinion affirming summary judgment on grounds for a TPR
Manitowoc County Human Serv. Dep’t v. J.K., 2017AP2371, 2/21/18 (1-judge opinion, ineligible for publication); case activity
If you handle TPR cases, this opinion is worth reading because the appellant raised creative arguments regarding, for example, the proper legal standard for summary judgment and a court’s ability to take judicial notice of its own records. She also lodged an “as applied” constitutional challenge to §48.415(6) regarding failure to assume parental responsibility. This decision has SCOW potential.
Evidence was sufficient to show failure to assume parental responsibility
State v. L.M.O., 2017AP1814, District 1, 2/13/18 (one-judge decision; ineligible for publication); case activity
L.M.O. argues that there was insufficient evidence for the circuit court to find that he failed to assume parental responsibility for his child D.A.M. He also argues the court’s findings violated his due process rights because they were based on D.A.M.’s out-of-home placement and L.M.O.’s subsequent lack of contact with D.A.M. while a no-contact order was in effect. The court of appeals rejects his claims.
COA rejects ineffective of assistance of trial counsel claim due to appellate lawyer’s failure to develop argument on prejudice
State v. D.C., 2016AP2229-2230, District 1, 11/30/17 (1-judge opinion, ineligible for publication); case activity
During the grounds phase of her TPR proceeding, D.C.’s lawyer asked the trial court to: (1) instruct the jury that she was prohibited from having visitation with her children for a period of time, and (2) give curative instructions that it was impossible for her to perform a condition for return of her kids and to assume parental responsibility due to her incarceration. The court planned to rule on these requests just before trial, but, oops, that did not happen.
Evidence sufficient to establish TPR grounds
Racine County Human Services Dep’t v. C.C., 2017AP750, District 2, 10/11/17 (one-judge decision; ineligible for publication); case activity
The evidence presented at the fact-finding hearing in C.C.’s TPR proceeding was sufficient to establish that she failed to assume parental responsibility under § 48.415(6).
Court of appeals upholds TPR summary judgment
J.N.W. v. J.R.P., 2017AP1390, 9/20/17, District 2 (one-judge decision, ineligible for publication); case activity
Robert, the father of Jessica, appeals the termination of is parental rights. Specifically, he argues the trial court erred in granting summary judgment because there were genuine issues of material fact as to whether he failed to communicate with her for more than six months, and even if he did, whether he had good cause for his failure.
County-imposed conditions for reinstating visits in CHIPS proceedings didn’t violate due process
Monroe County DHS v. T.M., 2017AP875 & 2017AP876, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity
T.M.’s parental rights were terminated on abandonment grounds under § 48.415(1). (¶¶2-10). She argues this violated her substantive due process rights under Kenosha Cty. DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, because the period of alleged abandonment included time during which the County suspended her visitation rights based on her failure to satisfy conditions it was impossible for her to meet. (¶14). The court of appeals disagrees.
Court of appeals rejects challenges to expert opinion and “failure to assume parental responsibility” instruction in TPR appeal
State v. S.D., 2016AP1701-1702, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity
This TPR appeal raises a number of interesting issues ranging from a Daubert challenge to the State’s psychologist and “parenting capacity assessment” to an ineffective assistance of counsel claim for failure to raise an “unconstitutional as applied” challenge to the standard jury instruction on “failure to assume parental responsibility.”