On Point: 40. TPRs

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court of appeals decision (1-judge; not for publication)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

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

TPR – Elements, Ground of Continuing Need of Protection and Services, Generally

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice.

Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)

Issue/Holding: A deported father’s participation in the TPR proceeding by a webcam system was “meaningful,” given that he could see and hear witnesses, be seen by the court, and communicate privately with counsel and with aid of an interpreter, ¶¶10-19.

State v. Lavelle W., 2005 WI App 266 (telephone hookup not functional equivalent of personal presence,

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

Issue/Holding: Stipulation to a TPR elements did not constitute withdrawal of the demand for a jury trial, where the element was submitted to, and found by, the jury under the instructions and special verdict form, ¶¶18-24.

The court approvingly analogizes to State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct.

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the County Department of Social Services must have made a reasonable effort to provide services ordered by the court.

Manitowoc County HSD v. Allen J., 2008 WI App 137

Issue/Holding:

¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions on an element of parental unfitness. Allen’s counsel had stipulated that the element was satisfied,