Articles Posted in Termination of Parental Rights

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courtroomOne 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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handsThe 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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babyThe 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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