On Point: 40. TPRs

Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.

Holding:

¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court. 

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner.

Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision

Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.

Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right,

Brown County DHS v. Terrance M., 2005 WI App 57

Issue/Holding:

¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”

Brown County DHS v. Terrance M., 2005 WI App 57

Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. (The court remands for determination of whether issue preclusion is appropriate in this instance,

Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder

Issue/Holding:

¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”

Kimberly S.S. v. Sebastian X.L., 2004 WI App 83

Issue: Whether § 48.415(4) requires proof that an underlying family court order denying physical placement contained the warnings required by § 48.356(2).

Holding:

¶7. The plain language of Wis. Stat. § 48.415(4) requires proof that the notices in Wis. Stat. § 48.356(2) were provided only when the underlying order was issued in juvenile court.

State ex rel. Julie A.B. v. Circuit Court, 2002 WI App 220
For Julie A.B.: Roberta A. Heckes

Issue/Holding: § 48.29(1) permits more than one party to file a request for a substitution of judge in a TPR proceeding, ¶2. (The mother filed a substitution request. After a new judge was assigned, the GAL filed a request, one that the mother unsuccessfully challenges as unauthorized.)