On Point blog, page 56 of 58
Parental Responsibility / Fitness, § 48.415(6) – Relevance of Father’s Conduct After Discovery He Is Child’s Father
State v. Bobby G., 2007 WI 77, reversing a summary order remanding the case to the court of appeals.
Issue/Holding:
¶5 For the reasons set forth, we hold that in determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under Wis. Stat. § 48.415(6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding.
Disposition – Discretion Properly Exercised
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)
Issue/Holding: The trial court properly exercised discretion in terminating rights:
¶25 Teodoro finally argues that at the dispositional stage, the trial court erroneously determined that termination of his parental rights would be in the best interests of the children. This determination is committed to the circuit court’s discretion, and will not be overturned unless that discretion is erroneously exercised.
Conditions – Possibility of Meeting: Deported Parent
Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)
Issue/Holding: Conditions imposed for non-termination of a deported parent’s children weren’t impossible, notwithstanding parent’s inability to return to country:
¶23 But as the circuit court noted, “Mexico is not prison” and Teodoro remained free to work on and meet many of the conditions of return. As an example, the first condition,
TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order.” (¶2)
Holding:
¶41 We do not accept the State’s position for three reasons.
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
¶57 The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be knowing and voluntary. As we determined in M.W.
TPR – Default as Sanction for Failure to Appear
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
Issue/Holding: ¶13 n. 3:
The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768.The circuit court found Shirley E.
Substantive Due Process – Grounds for Termination – Impossible to Meet Condition for Return
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
Issue: Whether finding of parental unfitness in a TPR, grounded on a condition for the child’s return that was impossible to meet when imposed (namely that the parent set up a suitable residence within 12 months even though she was incarcerated and would not be released before then), violates substantive due process.
Holding:
¶49 Like the Nevada Supreme Court,
Voluntariness of Plea to Grounds for Termination, Procedure for Challenging, Confusion of Parent
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
Issue/Holding: The circuit court must undertake a colloquy with the parent tracking § 48.422(7); the parent must know the rights being waived; and on a challenge to the plea the parent must make a prima facie showing that the colloquy was defective and also allege a lack of understanding of the omitted information, ¶¶25-26,
TPR – Self-Representation – Competency of Court – Delay in Disposition Hearing
Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06
Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return,
TPR – Self-Representation – Conducting Hearing in Absence of Pro Se Respondent
Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06
Issue/Holding: Holding the dispositional hearing beyond the 45-day time limit set by § 48.424(4) did not deprive the trial court of competency to proceed, where good cause existed for continuance under § 48.315(2), namely that the respondent’s attorney was going to be out of town during a portion of the limitation period, and the trial court expressly found good cause to schedule the hearing after counsel’s return,