On Point blog, page 8 of 58
COA affirms TPR, rejects father’s “love of his children” argument
State v. R.T., 2023AP1095 & 2023AP1096, District I, 9/12/23, 1-judge decision ineligible for publication; case activity (briefs not available)
R.T. (“Richard”) pled no contest to grounds but disputed whether his parental rights should be terminated at disposition. Specifically, Richard argued that “there was no support in the record for the court’s finding that it was in the children’s best interests that his parental rights be terminated.” The court of appeals disagrees, noting “there was ample support in the record for the court’s decision.” (Op., ¶15).
COA skirts A.G. claim in TPR appeal based on its reading of the record, applies usual deference to circuit court’s termination order
State v. B.W., 2022AP1329, District I, 9/12/23, PFR granted 12/11/23; affirmed 6/27/2024; (1-judge decision; ineligible for publication); case activity (briefs not available)
In yet another TPR appeal presenting an alleged miscommunication of the dispositional burden of proof, COA’s close read of the record evidence prevents B.W. from obtaining a requested hearing.
COA once again rejects arguments that “direct evidence” from adoptive resources is required at a TPR dispositional hearing
Brown County D.H.S. v. A.K., 2023AP730, 9/6/23, District III (one-judge decision; ineligible for publication); case activity (briefs not available).
A.K. concedes that the circuit court properly exercised its discretion at this dispositional hearing, but argues that the order must still be reversed as there was no direct evidence from the proposed adoptive resource. COA rejects that argument and affirms.
COA disregards business as usual and reverses default judgment in Milwaukee County TPR
State v. C.D., 2023AP1025, District I, 8/29/23, 1-judge decision ineligible for publication; case activity (briefs not available)
In an exciting defense win, District I signals a willingness to critically review default orders entered in Milwaukee County.
Lack of developed argument as to why “direct evidence” from foster parents should be required at a TPR dispositional hearing dooms appeal
Dane County DHS v. S.M., 2023AP607, 6/8/23, District 4 (one-judge decision; ineligible for publication); case activity (briefs not available).
In an appeal challenging the circuit court’s decision to terminate S.M.’s parental rights, the court of appeals concludes the court did not need to receive “direct evidence” from the proposed adoptive parents before exercising its discretion and entering a termination order.
Circuit court reasonably exercised its discretion in ordering default judgment; terminating parent’s rights
State of Wisconsin v. M.S.H., 2023AP692, District I, 8/1/23, 1-judge decision ineligible for publication; case activity (briefs not available)
A parent’s non-cooperation with an involuntary TPR leads to a default judgment and, despite some compelling arguments, COA rejects her invitation to reweigh the dispositional evidence and reverse the order terminating her parental rights.
Guest Post: SCOTUS leaves the Indian Child Welfare Act intact, for now
Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)
This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.
The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.
In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.
The Court addressed four separate constitutional challenges to ICWA:
Parent’s challenges to TPR order affirmed under deferential standard of review
State v. M.H., 2023AP732, District I, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)
M.H. raises two challenges to a circuit court order terminating her parental rights. Under an exceedingly deferential standard of review, both claims fail.
COA affirms TPR jury verdict based on harmless error analysis
C.T.L. v. M.L.K., 2023AP402, District III, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)
The court of appeals confronts two alleged errors stemming from M.L.K.’s TPR jury trial and affirms based on harmless error.
Circuit court properly exercised discretion when it entered an individualized order terminating parental rights of one parent
State of Wisconsin v. J.L.A., 2023AP424, District I, 6/27/23, 1-judge decision ineligible for publication; case activity (briefs not available)
In a TPR appeal with a typically tragic fact pattern, the court of appeals defers to the circuit court’s decision to terminate “Julia’s” parental rights.