On Point: 40. TPRs

State v. B.W., 2022AP1329, review of an unpublished court of appeals decision granted 12/11/23; affirmed 6/27/24 case activity (briefs not available)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

R.G. v. J.J., 2023AP630, 1/9/24, District 3 (one-judge decision; ineligible for publication); case activity

The father here–whom the court calls “Jacob”–appeals the termination of his parental rights to his son, “Hank.” About a year and a half after Hank was born, Jacob went to prison for sexual assault of a different child. Around this time, Jacob and his ex-wife, “Rita,” stipulated in their divorce proceeding that Jacob would have no placement of Hank “until further order of the court.” About three and a half years later, Rita moved to terminate Jacob’s parental rights to Hank, alleging among other things that he’d been denied physical placement for more than a year under Wis. Stat. § 48.415(4). Jacob principally argues his agreement to forego placement while he was incarcerated doesn’t constitute a “denial,” so the statutory ground doesn’t apply.

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.

State v. S.H., 2023AP1786, 12/19/23, District I (one-judge decision; ineligible for publication); case activity

S.H. raises a very specific challenge to the order terminating her parental rights to her son, H.C.: that the circuit court failed to consider the age of H.C.’s foster mother with regard to the best interests of the child at disposition. The court of appeals rejects the challenge, and S.H.’s reliance on several prospective adoption cases, because the focus in the TPR context is whether the child is adoptable and whether the TPR would provide stability and permanence to the child, not on “whether a proposed adoptive resource is going to be approved in later proceedings.” Op., ¶19.

State v. S.F., 2023AP1699, 1702-1705, 12/12/23, District I (one-judge decision; ineligible for publication); case activity

In an all-around sad TPR appeal, S.F. (“Sabrina”) challenges (1) the sufficiency of the evidence supporting the court’s finding that grounds existed to terminate and (2) the court’s discretionary decision to terminate her parental rights to her five children. Despite the fact that neither court doubted Sabrina’s love and affection for her children, the court of appeals affirms.

State v. M.E.E., 2023AP1510, 11/28/23, District I (one-judge decision; ineligible for publication); case activity

In a dense and fact-dependent opinion, COA affirms under well-settled standards of review.

State v. T.J., 2023AP1239-1242, 11/28/23, District I (one-judge decision; ineligible for publication); case activity

Despite  a battery of legal challenges, COA swiftly and efficiently marches toward affirmance 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.

Kenosha County DCFS v. M.T.W. 2023AP610, 11/15/23, District 2 (one-judge decision; ineligible for publication); case activity

“Mary” appeals from the termination of her parental rights to her daughter “Carrie.” the court of appeals rejects several claims that Mary’s counsel was ineffective and affirms.