Articles Posted in Termination of Parental Rights

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In Wisconsin parental termination proceedings, a parent whose parental rights are at risk has the constitutional right to effective counsel, much as a criminal defendant has. This means that the parent must be adequately represented in court, and his or her counsel should not commit fundamental errors that prejudice the parent’s defense. When these types of errors occur, a parent may be able to have termination proceedings reopened if he or she can show that ineffective assistance occurred.

In In Re Termination of Parental Rights of A.RC and D.RC, the State of Wisconsin attempted to terminate the parental rights of D.C. D.C.’s two children, A. RC and D. RC, were removed from D.C.’s home after it was discovered that the children were being physically and sexually abused. D.C. was ultimately charged with felony crimes and sentenced to prison for this abuse. During that time, A. RC and D. RC were placed in a foster home, and conditions were set up for the eventual return of the two children to D.C. At the time, however, D.C. was barred from having contact with A. RC as a result of the criminal conviction, and thus he could not visit the kids or have significant contact with them.

About a year later, the state initiated proceedings to terminate D.C.’s rights based on his failure to meet the requirements for reunification and his failure to assume parental responsibility. During the termination proceedings process, D.C. was released from prison and acquired counsel. At an initial pretrial conference, D.C.’s counsel requested that special jury instructions be given to explain that D.C. could not fulfill his parental responsibilities because of the no-contact order and incarceration, rather than any intentional failure on the part of D.C. The judge concluded that he would consider the instructions but reserved the issue for trial. After the pretrial conference, the case was reassigned to a new judge, and the trial was pushed back. D.C. ended up with different counsel for the final trial, and, when the judge offered the standard jury instructions, D.C.’s new counsel did not request the special instructions previously offered by D.C.’s prior counsel. The jury ultimately determined that D.C.’s parental rights should be terminated.

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When Wisconsin courts consider where to place children, their foremost concern is ensuring that the best interests of the child are respected and that the child is given the best opportunity to find a home environment that is safe and supportive. While sometimes this means that a parent rehabilitates his or her relationship with a child and they are reunited, other times it means that the courts must look to foster parents or adoption for the child. While adoption is never the first choice for a court, it is sometimes necessary when a parent cannot uphold his or her responsibilities.

In a recent Wisconsin child custody case, the court considered what to do when an initial plan for adoption falls through for a child and whether to consider reopening termination proceedings for a biological parent. In the case, M.G. was removed from the home of her mother, R.G., after she was found to be suffering from dehydration and malnutrition. In October 2015, the court held a hearing to impose conditions that R.G. needed to meet for the return of her child. R.G. failed to comply with the conditions, and in September 2016, a petition to terminate her rights was filed. R.G. failed to show up for the pretrial hearing and failed to attend the final dispositional hearing.

At the dispositional hearing, the court heard testimony from various parties that M.G. was doing well with her foster family and that it was anticipated that they would try to adopt her. The court determined that it was in the best interest of M.G. that R.G.’s parental rights be terminated and that she be transferred to the custody of the state, where she could then be adopted. Unfortunately, in March 2017, M.G. was transferred out of her foster family after it was discovered that her foster mother was physically abusing her. At this time, R.G. moved to reopen her disposition hearing on the basis of the new evidence that M.G. was no longer with her foster family. The State opposed the motion, and, after a hearing, the lower court ultimately concluded that the termination of R.G.’s parental rights should stand because the termination of rights was not contingent on M.G.’s foster family adopting her, but instead it was simply in her best overall interest to be adopted.

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Courts considering the termination of parental rights often focus extensively on how termination will affect the child’s relationship with his or her parents and other relationships as well, such as connections with grandparents. Courts are always reluctant to cut off a child’s access to family members, even if those family members historically have not taken good care of the child. In considering the future of a child’s relationships, courts may sometimes seek information from foster parents or potential adoptive parents as to whether they are willing to continue to allow the child to have a relationship with his or her family members. In a recent Wisconsin child custody case before the Wisconsin Court of Appeals, the court looked at whether it is fair to consider these types of statements in termination proceedings.

In In Re N.L.P. and M.P.P., the Wisconsin Court of Appeals considered the termination of M.P.’s parental rights for failing to follow through on requirements that he maintain a closer relationship with his twin daughters, N.L.P. and M.P.P. The two girls were removed from the custody of their mother after they were discovered to have recently healed fractures that were not consistent with a fall. At the time, their mother had previously been reported for child welfare issues and was alleged to have left her children (ranging from seven years in age to infants) alone for extended periods of time. At the time, M.P. was living close to N.L.P. and M.P.P., but he had limited contact with them. He was also taking care of two other children at the time and was found to have difficulty supporting them alone. Accordingly, N.L.P. and M.P.P. were placed in foster care. A CHIPS order was implemented, and certain conditions were placed on M.P. before the girls could be returned home. These requirements included supervised visitation, parenting education, and therapy.

After several months, it was reported that M.P. was failing to meet the requirements imposed. He was inconsistent in his visits with his daughters, missed important educational and medical appointments, and did not always attend therapy. Caregivers also noticed that after unsupervised visits with his daughters, they would develop certain fears or tics, such as a stutter, that made them concerned about M.P.’s interactions with the girls. Accordingly, a year and a half later, a Petition for Termination of Parental Rights was filed against M.P. M.P. opted for a court trial, which took four days and included extensive evidence about M.P.’s actions and the girls’ situation. During the trial, the girls’ foster parents testified that they hoped that M.P. would continue a relationship with the girls even after the termination of parental rights, and they were open to accommodating that relationship. At the close of evidence, the trial court decided to terminate M.P.’s rights. M.P. appealed.

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In Wisconsin, one of the grounds on which individuals can move for termination of a parent’s rights is abandonment. Abandonment occurs when a parent is aware of the location and contact information for a child, but fails to visit or communicate with the child for six months or longer. In a recent case before the Wisconsin Court of Appeals, one mother moved to terminate the parental rights of her ex-husband, the father, after he failed to visit or communicate with their daughter.

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In Wisconsin, the procedural steps that must be completed before a parent’s rights can be terminated are extensive. Parents at risk of having their rights terminated must be offered substantial opportunities to rectify their behavior and comply with necessary steps toward reunification. But what if the compliance required is exceptionally difficult, or even impossible? A recent Wisconsin child custody case takes a look at such an argument by a parent who lost parental rights.

In In Re The Termination of Parental Rights to M.A.B. v. T.M., T.M.’s parental rights were terminated after a jury found that she did not substantially comply with the requirements imposed on her by the Monroe County Department of Human Services, and she had abandoned her children. In January 2015, T.M.’s children were removed from her home and placed in foster care, based on concerns about T.M.’s mental health. In order to have visits with her children, T.M. was required to undertake certain conditions, including submitting to drug testing, visiting with a mental health provider, contacting her social worker to inquire about her children, contacting her children as allowed by her social worker, and acknowledging important events like her children’s birthdays. Almost a year later, Monroe County moved to terminate T.M.’s parental rights on the basis of abandonment after she failed to comply with these conditions.

According to T.M.’s social worker, Gina Phelps, Ms. Phelps had attempted to contact T.M. on a variety of occasions to inform her of these conditions and discuss how to comply with them. After a hostile phone call with T.M., Ms. Phelps began to send letters to T.M. to keep her updated on these conditions and attempt to move forward. Ms. Phelps never heard from T.M. by mail or phone call, and T.M. never contacted her to inquire about her children. Ms. Phelps also testified that T.M. never showed up to appointments with her mental health providers and never contacted her children at their foster home, despite the fact that the foster parents had given her a cell phone to do so.

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One of the fundamental tenets of the legal system is that you must show up to assert your legal rights if you want to have those rights enforced. Parties to a legal dispute cannot simply refuse to take part in legal proceedings and expect to have their position upheld, or even considered, by the court. Indeed, when an individual does not show up or respond to a legal proceeding or complaint, a court may enter a default judgment against the person. This means that the opposing party wins not necessarily on the merits of their argument but simply by default, since the other party didn’t show up. In a recent case before the Wisconsin Court of Appeals, this type of default judgment had significant consequences for a father seeking to keep his parental rights.

In In Re The Termination of Parental Rights to A.P. and J.P., proceedings were initiated against K.P., the father of A.P. and J.P., after he failed to abide by state orders obligating him to maintain contact with his children. K.P. was incarcerated at the time that A.P. and J.P. were removed from their mother, and he did not initially have regular contact with them while in jail. In July 2014, temporary custody of J.P. and A.P. was awarded to the Milwaukee Bureau of Child Welfare, and, in order to prevent the termination of his parental rights, K.P. was instructed to maintain monthly written contact with his children from jail. K.P. failed to do so. In October 2015, a petition to terminate K.P.’s parental rights was filed, stating that K.P. had abandoned his children. K.P. was ordered to show up for the termination proceedings and was released from custody in order to do so. K.P. was appointed counsel, who attended the first hearing, but K.P. did not show up. His counsel did not know where he was. The court went ahead and ordered the remaining hearing and trial dates and warned K.P.’s counsel that if K.P. did not appear, a default judgment could be entered against him. While K.P. later attended the two pretrial hearings, he did not show up on the day of the jury trial, despite repeated attempts by the court to reach him. A default judgment was entered against him, and his rights were terminated. K.P. appealed.

On appeal, K.P. argued that his behavior was not so egregious as to justify a default judgment because he had attended the prior hearings, and he had telephoned his counsel on the day of the trial to say that he would be late. Under Wisconsin law, however, a trial court’s determination of a default judgment may be overturned only if the trial court did not follow the law or had no reasonable basis for the default judgment. Here, the Court of Appeals noted that K.P. had received multiple warnings regarding the possibility of default findings if he did not appear, and he had acknowledged these warnings. Moreover, although he initially telephoned his counsel on the morning of the trial to let him know that he would be a few minutes late, his counsel and the court were unable to reach him for the next two hours, even after delaying the trial in an attempt to allow K.P. to attend. Under these circumstances, the Court of Appeals held that the trial court was not out of line in determining that egregious conduct had occurred, and there was a reasonable basis for the decision. Moreover, the Court of Appeals noted that K.P. had never made any significant attempts to contact or support his children and had not been a consistent presence in their lives.

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The termination of parental rights is a court remedy that is taken very seriously, and it involves significant collaboration across the judicial and administrative systems. While courts may order parental arrangements and coordinate temporary physical custody of children deemed to be in danger at home, through Children in Need of Protection or Services (CHIPS) orders, divisions of child welfare, like the Division of Milwaukee Child Protective Services, are charged with implementing these orders, arranging visitation schedules, and ensuring the continued protection of children and representation of their best interests. A recent case before the Court of Appeals of Wisconsin looks at what happens when visitation cannot be adequately implemented by child services organizations, and how this affects judicial decisions regarding termination.

In In Re Termination of Parental Rights of B.M.R., F.J.R. was mother to two children, B.M.R. and B.H.T. B.M.R. was removed from her home when she was two years old due to lack of adult supervision. F.J.R. drank heavily during her pregnancy with B.H.T., and B.H.T. was also removed from the home shortly after birth. In 2013, the court entered CHIPS orders for both children that required F.J.R. to seek treatment for mental health and substance abuse issues and also established conditions for visitation with the children. Under the CHIPS orders, B.M.R. also received mental health treatment for violent and disruptive behavior. Over time, therapists began to notice that B.M.R.’s behavior worsened significantly before and after visits with F.J.R., and it was recommended that visitation be conducted in the presence of a therapist. When B.M.R.’s behavior continued to worsen, the state of Wisconsin sought a court order to temporarily suspend visitation altogether based on B.M.R.’s best interests. The court granted the order and suspended visitation. Petitions to terminate parental rights were also filed, and trial was set for shortly thereafter. At trial, the jury held that based on a failure to assume parental responsibility and B.M.R.’s continued need for protection, the termination of parental rights was justified. F.J.R. appealed.

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The termination of parental rights in Wisconsin is a very serious issue. Courts do not take requests for the termination of rights lightly, since any outcome can have grave consequences for all of the parties involved. In evaluating a petition for the termination of parental rights, courts will look primarily at whether termination is in the best interest of the child, and which circumstances will best ensure the child’s future success and happiness. As illustrated in the case below, in some circumstances, this can mean terminating the rights of biological parents in order to allow a child to be adopted by foster parents or other individuals.

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