On Point blog, page 9 of 59
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.
SCOW reverses court of appeals and holds parent is unable to withdraw their plea, fails to agree on much of anything else
State v. A.G., 2023 WI 61, 6/30/23, reversing an unpublished decision of the court of appeals; case activity (briefs not available)
In a closely-watched appeal involving tricky questions regarding plea withdrawal in TPR cases, a fractured court agrees that the court of appeals got it wrong but fails to otherwise develop the law.
State sufficiently proved parent’s pleas were knowing, intelligent and voluntary despite possible misadvice in plea colloquy
State v. S.S., 2022AP1179 & 2022AP1180, District I, 6/7/23 (one-judge decision; ineligible for publication); case activity (briefs not available)
In yet another TPR appeal with a parent alleging a defective plea colloquy, the court of appeals finds that the State proved the plea was knowing, intelligent, and voluntary at a postdisposition hearing.
Parent forfeited challenges to competency and jurisdiction in TPR appeal by not objecting to defective service
State v. I.B., 2022AP911 & 2022AP912, District I, 6/6/23 (one-judge decision; ineligible for publication); case activity (briefs not available)
Although the State appears to have conceded it did not follow the statutory requirements for proper service of the petition(s) in this TPR, Ivy’s appeal fails because she did not object below. And, because the error could have been cured if counsel had objected, her ineffectiveness claim also fails.
Evidence sufficient to establish grounds for TPR, and court exercised discretion ordering termination
Barron County DH & HS v. J.W., 2023AP60, District 3, 6/13/23 (one-judge decision; ineligible for publication); case activity
J.W. (“Jill”) challenges the sufficiency of the evidence to prove continuing CHIPS grounds for terminating her parental rights and the circuit court’s exercise of discretion in terminating her rights at the disposition hearing. Neither challenge succeeds.
Admission of other-acts evidence at TPR grounds trial was harmless
Barron County DH & HS v. Q.B., 2023AP37, District 3, 6/13/23 (one-judge decision; ineligible for publication); case activity
At the trial to terminate the parental rights of Q.B. (“Quan”) on grounds of continuing CHIPS and failure to assume parental responsibility, a substance abuse counselor referred to Quan having spent “quite a bit of time incarcerated over the years” before the entry of the CHIPS order. (¶¶8-9, 24). The circuit court then declined to give a cautionary instruction. Assuming the evidence was inadmissible and that a cautionary instruction was appropriate, the error was harmless.