On Point: E. Procedure

Dane County Department of Human Services v. J.K., 2023AP1946-47, 3/28/24, District IV (one-judge decision; ineligible for publication); case activity

In a TPR appeal presenting multiple issues, COA rejects all of J.K.’s arguments and affirms.

Kenosha County DCFS v. J.M.C. III, 2023AP1382, 3/13/24, District 2 (one-judge decision; ineligible for publication); case activity

In affirming the termination of J.M.C.’s parental rights to his daughter, the court holds that (1) the circuit court did not erroneously exercise its discretion in denying J.M.C.’s request for a new attorney and (2) the circuit court’s failure to take testimony in support of J.M.C.’s no contest plea to grounds was harmless.

Sheboygan County DH & HS v. A.P., 2023AP1382, 2/7/24, District 2 (one-judge decision; ineligible for publication); case activity

Faced with the department’s motion for summary judgment on grounds of abandonment, counsel for A.P filed a brief in opposition and attached two exhibits, but failed to file any affidavits. Postdisposition and on appeal, A.P. argues that she received ineffective assistance of trial counsel because counsel failed to obtain or file an affidavit in opposition to the department’s motion and for not informing A.P. of the dire need for counsel to do so. The court affirms the rejection of A.P.’s claims and faults A.P. for asking to receive the benefit of her own error under the “doctrine of invited error.” Op., ¶27.

State v. H.C., 2023AP1950, 3/5/24, District I (one-judge decision; ineligible for publication); petition for review granted 9/11/24; reversed 6/3/25 case activity

In an interesting decision that seems almost guaranteed to invite review by SCOW, COA departs from the plain language of the statute and reads a burden of proof requirement into the TPR dispositional procedure.

State v. I.A.A., 2023AP1723-24, 2/28/24, District 2 (one-judge decision; ineligible for publication); case activity

Long story short, the court of appeals affirms the orders terminating I.A.A.’s (“Ivy’s”) parental rights despite the circuit court’s admitted failure to comply with Wis. Stat. § 48.422(3)’s mandate to take testimony related to grounds at Ivy’s no contest plea hearing. Because the court was able to “tease out” all the necessary elements to grounds from “other witnesses at other hearings,” the court concludes that Ivy was not prejudiced and that the error was harmless. Op., ¶33.

K.W. & D.W. v. S.L., 2023AP1582, 2/13/24, District 3 (one-judge decision, ineligible for publication); case activity

The summary judgment issue here turned on one simple question: did a genuine issue of fact exist as to whether S.L. (“Susan”) knew or could have reasonably discovered the whereabouts of her son (Alex) during the relevant period of alleged abandonment? Upon consideration of Susan’s multiple affidavits and drawing reasonable inferences in the light most favorable to the Susan, as the non-moving party, the court of appeals reverses the circuit court’s order granting summary judgment on grounds.

State v. B.W., 2022AP1329, review of an unpublished court of appeals decision granted 12/11/23; affirmed 6/27/24 case activity (briefs not available)

We don’t know the precise issue or issues presented, but the court of appeals’ decision suggests the state supreme court may be looking to un-fracture the fractured decision it rendered last term in State v. A.G. There, the circuit court had told a parent pleading to grounds in his TPR trial’s first phase that the state would have the burden in the second phase: that is, the state would have to show, by clear and convincing evidence, that termination was in the child’s best interest. Of the six justices who decided the case, four agreed there is no “burden”; rather the best-interest inquiry is the “polestar” (your guess is as good as ours on what sort of legal standard that encompasses). But these four could not agree on why the judge’s communication of this concededly incorrect standard didn’t mandate reversal; see our post for more on this.

State v. D.K., 2023AP292-293, 1/3/24, District I (one-judge decision; ineligible for publication); case activity

Despite a novel challenge as to the integrity of his plea, COA rejects “Daniel’s” arguments and affirms in this TPR appeal.

Jackson County DHS v. R.H.H., 2023AP1229-1232, 11/16/23, District IV (one-judge decision, ineligible for publication); case activity

In Kenosha Cnty. DHHS v. Jodie W., 2006 WI 93, ¶56, 293 Wis. 2d 530, 716 N.W.2d 845, the court overturned a TPR order premised on a parent’s failure to meet “an impossible condition of return, without consideration of any other relevant facts and circumstances particular to the parent.” R.H.H. argued that he was likewise subject to an “impossible” condition of return because the dispositional order that denied him placement or visitation with his four children required him to complete sex offender treatment and domestic violence programming. The court rejects his due process-based claim, for multiple reasons, including that R.H.H., failed to introduce evidence to support his assertions that his confinement in prison or his pending criminal appeal made it “impossible” for him to meet his conditions of return. (Op., ¶21).

State v. B.M., 2023AP1137, 11/14/23, District I (ineligible for publication); case activity

Despite an intervening decision from SCOW which generated skepticism as to whether parents can obtain plea withdrawal when a circuit court miscommunicates the burden of proof in a TPR plea colloquy, COA nevertheless reverses and remands in this case presenting yet another “A.G.” claim.