On Point: 40. TPRs

court of appeals decision (1-judge; not for publication)

TPR
Plea to grounds upheld, in light of trial court credibility determinations at post-termination evidentiary hearing, against claim Benny didn’t understand State’s burden of proof, 2-stage nature of TPR, or finding of unfitness as necessary consequence of plea.

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.

court of appeals decision (1-judge, not for publication); for James M.: Shelley Fite, SPD, Madison Appellate

TPR – Voluntariness of Plea

¶24      Because Wisconsin statutory law does not permit a court to terminate parental rights upon a finding of unfitness without completing the dispositional phase, we see no rationale for requiring a court to inform a parent that a finding of unfitness results in the automatic loss of the constitutional right to parent.  

court of appeals decision (1-judge; not for publication)

TPR – Closing Argument
County’s closing argument exhorting jury to consider that gal “represents the child and what’s best for the child” merely described “how the parties and their attorneys were aligned,” not that jury “should consider the ‘best interest’ of the child.”

TPR – Evidence
Evidence that Amber voluntarily terminated her rights to her firstborn child was probative of “the fact to be proven,

court of appeals decision (1-judge; not for publication); Lora B. Cerone, SPD, Madison Appellate

TPR – Stipulation, Grounds
Signed stipulation to grounds, which effectively withdrew jury demand, upheld where trial court addressed parent in court and on record, and she “acknowledged her understanding clearly, repeatedly, and without equivocation.”

TPR – New Evidence
Postdisposition change in placement affect “advisability of the original adjudication” and therefore didn’t amount to “new evidence”

court of appeals decision

TPR – Forfeiture of Jury Trial
Failure to appear at initial hearing and make timely request forfeited right to jury trial; trial court’s ultimate refusal to enter default judgment “did not return the case to the initial hearing stage or reinstate Luis’s right to a jury trial”; nor did filing of amended petition reset this clock; finally, the court suggests that denial of right to jury trial was,

court of appeals decision (1-judge; ineligible for publication)

TPR – Uniform Child Custody Jurisdiction and Enforcement Act
“Wis. Stat. § 822.23 does not require a court to dismiss a custody action as soon as it discovers that another state had entered a custody order for the child when the action was commenced in this state.  It prohibits the court from modifying the custody determination of another state unless the other court has declined jurisdiction,” ¶15.

court of appeals decision (1-judge; not for publication)

TPR – Competency of Court, Uniform Child Custody Jurisdiction and Enforcement Act
Custody order in Iowa didn’t strip competency of Wisconsin court to act on TPR petition, where child now lived in Wisconsin, and matter held in abeyance until Iowa declined jurisdiction; “Wis. Stat. § 822.23 does not require a court to dismiss a custody action as soon as it discovers that another state had entered a custody order for the child when the action was commenced in this state. 

 “Qualified Expert Witnesses” Requirement

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.

Monroe County DHS v. Luis R., 2009 WI App 109

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.