On Point blog, page 7 of 20
Defense win! COA orders new TPR trial due to erroneous exclusion of evidence
Brown County Human Services v. T.F., 2020AP793, 9/22/20, District 3 (1-judge opinion, illegible for publication); case activity
To establish grounds for terminating T.F.’s parental rights, the Department sought to prove that she had abandoned her daughter, Allie, for period of 6 months or longer. It filed a successful motion in limine seeking to exclude evidence of T.F.’s communications and visits with her daughter occurring after it filed its TPR petition. The court of appeals held that the circuit court erred in excluding this evidence. It reversed and remanded the case for a new jury trial on grounds for the TPR.
COA affirms partial summary judgment that mom abandoned her son
Juneau County DHS v. C.C., 2020AP438, 6/4/20, District 4, (1-judge opinion, ineligible for publication); case activity
Courts don’t usually award summary judgment in TPR cases, especially not at the grounds phase where the question is whether the parent abandoned the child. The issue is generally too fact intensive. But here the circuit court found no genuine issue of fact regarding abandonment, and the court of appeals affirmed.
COA rejects claim that court terminated parental rights due to father’s learning disability
State v. J.W., 2020AP161, 5/12/20, District 1 (1-judge opinion, ineligible for publication); case activity
At the grounds phase of his TPR proceeding J.W. stipulated to the “failure to assume parental responsibility” reason for terminating his parental rights. On appeal he argued that at the trial court erroneously determined that he was unlikely to meet the conditions of return due to a learning disability.
Amendment to continuing CHIPS TPR grounds applies to CHIPS orders issued before amendment
Eau Claire County DHS v. S.E., 2020 WI App 39, petition to review granted, 10/21/20, affirmed, 2021 WI 56; case activity
Following up on the decision issued in Dane County DHS v. J.R., 2020 WI App 5, the court of appeals rejects some additional challenges to the changes 2017 Wis. Act 256 made to the continuing CHIPS ground for terminating parental rights.
Yet another challenge to applying the change in continuing CHIPS grounds to pre-amendment cases
Brown County DHS v. H.P., 2019AP1324 & 2019AP1325, District 3, 5/13/20 (one-judge decision; ineligible for publication); case activity
This case involves another challenge to the application of the new version of § 48.415(2)(a)3. in cases where the CHIPS order was entered before the effective date of the amendments. As in Dane County DHS v. J.R., 2020 WI App 5, and Eau Claire County DHS v. S.E., 2019AP894, slip op. recommended for publication (WI App May 13, 2020), the court of appeals rejects the challenges.
COA affirms exclusion of evidence re State’s prior unsuccessful TPR at later TPR trial
State v. D.L., 2019AP2331, District 1, 3/10/20; (1-judge opinion, ineligible for publication); case activity
The State petitioned to terminate D.L.’s parental rights to Y.P.-T. for failure to assume parental responsibility in January 2017 and lost at a jury trial. So when the State filed a new T.P.R. proceeding in October 2018, D.L. moved the circuit court to instruct the jury instructed that he had a substantial relationship with Y.P-T for the first 20 months of her life. The circuit court denied the motion, and the court of appeals affirmed.
TPR defense win! COA sees material issues of fact, reverses summary judgment on abandonment
Racine County Human Services Department v. S.J.A., 2019AP2160 & 2161, 2/5/20, District 2 (one-judge decision; ineligible for publication); case activity
It would be interesting to see the briefs in this case, but since it’s a TPR, they’re not online. What we can see is the opinion, which shows commendable (and unfortunately uncommon) attention to detail. It’s easy to imagine a glib, slapdash affirmance of this summary judgment against the parent in a TPR; we don’t get one though. Instead we see a searching review of what was proved and what was not, and a (really all too uncommon) reversal.
COA finds no IAC in TPR: advice to plead to grounds was reasonable
Kenosha County DHS v. M.M.B., 2019AP1776 & 1777, 1/22/20, District 2 (one judge decision; ineligible for publication); case activity
M.M.B. is the father of two children, each of whom has a serious genetic disorder that threatens normal brain growth and function. The disorder can’t be cured but it can be controlled by adherence to a ketogenic diet. Both children were adjudicated CHIPS due to M.M.B.’s asserted inability to provide for their special needs; he allegedly does not believe that they have the disorder and does not comprehend the recommended diet. He also, per the county, doesn’t respond to their emotional needs in appropriate ways.
COA holds father failed to assume parental responsibility
Adoptions of Wisconsin, Inc. v. N.R.K., 2019AP1726, 12/27/19, District 3 (one-judge decision; ineligible for publication); case activity
Here the court of appeals upholds the termination of a biological father’s parental rights, concluding that he failed to assume parental responsibility.
COA rejects “as applied” challenge to amended TPR law, notes §893.825(1) requiring service on legislature
Dane County D.H.S. v. J.R., 2020 WI App 5; case activity
J.R.’s children were placed outside the home pursuant to two CHIPS cases. During the placement, the legislature changed the 4th element for the “continuing CHIPS” ground for termination of parental rights. When the County petitioned to terminate J.R.’s rights, it proceeded under the amended statute. J.R. objected to the retroactive application of the amended statute on statutory and due process grounds.