1979 c. 330
;
1983 a. 189
s.
329 (5)
;
1983 a. 326
;
1983 a. 447
ss.
8
,
67
;
1983 a. 488
,
538
;
1987 a. 355
,
383
;
1989 a. 86
;
1993 a. 235
,
395
;
1995 a. 77
,
108
,
225
,
275
;
1997 a. 35
,
80
,
237
,
292
,
294
;
1999 a. 9
,
32
;
2001 a. 2
,
109
;
2005 a. 277
,
293
;
2007 a. 45
,
116
;
2009 a. 94
;
2011 a. 257
s.
56
;
2011 a. 271
;
2015 a. 366
.
Consent by the mother subsequent to the birth of the child to termination of her parental rights in its best interests so that the child might be placed for adoption constituted an abandonment, and although she was permitted to withdraw that consent by a previous decision of the supreme court, the best interests of the child require modification of the court order to effect a termination of her parental rights. Lewis v. Lutheran Social Services,
68 Wis. 2d 36
,
227 N.W.2d 643
(1975).
A termination order was not supported by sufficient findings when the findings merely repeated statutory language and made no determination of the best interests of the child. Termination of Parental Rights to T. R. M.
100 Wis. 2d 681
,
303 N.W.2d 581
(1981).
A parent has constitutionally protected rights to the care, custody, and management of a child. In Interest of J. L. W.
102 Wis. 2d 118
,
306 N.W.2d 46
(1981).
The dismissal of termination proceedings on grounds of abandonment because only 2 of 6 dispositional orders contained statutory warnings was inappropriate. The warning is only required in one order. In Interest of K.K.
162 Wis. 2d 431
,
469 N.W.2d 881
(Ct. App. 1991).
The abandonment period under sub. (1) (a) 3. need not immediately precede filing of the petition. If abandonment is found, termination is still discretionary. In Interest of T.P.S.
168 Wis. 2d 259
,
483 N.W.2d 591
(Ct. App. 1992).
While the CHIPS judge must notify the parents of possible termination grounds in the written dispositional order and repeat that information orally to any parent present in court, proof that the oral notice was given is not required in later termination proceedings under sub. (2) (a). In Interest of D.P.
170 Wis. 2d 313
,
488 N.W.2d 133
(Ct. App. 1992).
A developmentally disabled father's allegation that the county, in violation of the Americans with Disabilities Act, did not take into account his disability in attempting to provide court ordered services was not a basis to attack a termination proceeding. The ADA did not place an added burden on the county to meet the requirements of sub. (2) (b) [now sub. (2) (a) 2.]. In Interest of Torrence P.
187 Wis. 2d 10
,
522 N.W.2d 243
(Ct. App. 1994).
A child “left with" another person under sub. (1) (a) 3. may have been actively placed with the other person by the parent or allowed to live with the other person with the parent's knowledge. Interest of Christopher D.
191 Wis. 2d 681
,
530 N.W.2d 34
(Ct. App. 1995).
“Disassociated" under sub. (1) (c) is not unconstitutionally vague. Disassociation means more than “failure to visit or communicate" under sub. (1) (a). Interest of Christopher D.
191 Wis. 2d 681
,
530 N.W.2d 34
(Ct. App. 1995).
The respondent in a TPR case has the right to meaningfully participate; whether physical presence is required must be determined on a case by case basis. Telephone participation may be adequate. Interest of Christopher D.
191 Wis. 2d 681
,
530 N.W.2d 34
(Ct. App. 1995).
A showing of abandonment under sub. (1) (a) 3. creates a rebuttable presumption that imposes on the parent the burden of disproving abandonment under sub. (1) (c) by showing by a preponderance of the evidence that the parent has not disassociated himself or herself from the child. Odd S.-G v. Carolyn S.-G,
194 Wis. 2d 366
,
533 N.W.2d 794
(1995).
Termination under sub. (8), due to a murder occurring prior to the adoption of sub. (8), did not violate the prohibition against
ex post facto
laws and did not violate due process, equal protection, or double jeopardy protections. Winnebago County DSS v. Darrell A.
194 Wis. 2d 628
,
534 N.W.2d 907
(Ct. App. 1995).
It was a denial of due process to terminate parental rights on grounds substantially different from those that the parent was warned of under s. 48.356. State v. Patricia A.P.
195 Wis. 2d 855
,
537 N.W.2d 47
(Ct. App. 1995),
95-1164
.
Sub. (5) does not require an assessment of present and future behavior. The statute refers to past behavior that was a threat to the child's welfare. Jerry M. v. Dennis L. M.
198 Wis. 2d 10
,
542 N.W.2d 162
(Ct. App. 1995),
95-0075
.
For all terminations under sub. (5), there must be a showing that the parent has exhibited a pattern of abusive behavior and a showing under par. (a) or (b). A “conviction" under par. (a) is a conviction after the appeal as of right has been exhausted. Monroe County v. Jennifer V.
200 Wis. 2d 678
,
548 N.W.2d 837
(Ct. App. 1996),
95-3062
.
Sub. (7) is a constitutional part of a statutory scheme that is narrowly tailored to meet the state's compelling interests. State v. Allen M.
214 Wis. 2d 302
,
571 N.W.2d 872
(Ct. App. 1997),
97-0852
.
Venue becomes an issue only in the event that it is contested. The county where a child “resides" is the county of domicile. The county where a child “is present" is the county where the child is present at the time a petition is filed. State v. Corey J. G.
215 Wis. 2d 395
,
572 N.W.2d 845
(1998),
96-3148
.
When a parent is prohibited from visitation, communication by phone and letter is not prohibited, and sub. (1) (b) does not apply. Periods in which there has been no contact whatsoever will be counted under sub. (1) (a) 2. and 3. Carla B. v. Timothy N.
228 Wis. 2d 695
,
598 N.W.2d 924
(Ct. App. 1999),
99-0853
.
The rules of civil procedure apply to termination of parental rights proceedings. Directed verdicts are permissible. Door County DHFS v. Scott S.
230 Wis. 2d 460
,
602 N.W.2d 167
(Ct. App. 1999),
99-0719
.
A guardian ad litem's comments regarding the best interests of the child were not improper. Only when the jury is instructed that it should consider the best interests of the child is there reversible error. Door County DHFS v. Scott S.
230 Wis. 2d 460
,
602 N.W.2d 167
(Ct. App. 1999),
99-0719
.
Prior to determining that grounds existed to terminate parental rights, the circuit court had the duty at the fact-finding hearing to find by clear and convincing evidence that all of the elements of s. 48.415 (1) (a) 3. had been satisfied. By entering a default judgment against the mother on the issue of abandonment without first taking evidence, the circuit court did not make the finding. The error was subject to a harmless error analysis. Evelyn C.R. v. Tykila S.
2001 WI 110
,
246 Wis. 2d 1
,
629 N.W.2d 768
,
00-1739
.
In a case under sub. (4), a parent's right to meaningfully participate in the termination proceeding includes the right to present evidence at the fact-finding hearing regarding efforts to meet the conditions for reestablishing visitation. It was error to restrict evidence to whether an order denying visitation had remained in effect for a year. State v. Frederick H.
2001 WI App 141
,
246 Wis. 2d 215
,
630 N.W.2d 734
,
00-3035
.
Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant to predicting a parent's chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services v. Tara P.
2002 WI App 84
,
252 Wis. 2d 179
,
643 N.W.2d 194
,
01-3034
.
In determining whether “there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a parent's relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P.
2002 WI App 84
,
252 Wis. 2d 179
,
643 N.W.2d 194
,
01-3034
.
A mother's criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under sub. (6). State v. Quinsanna D.
2002 WI App 318
,
259 Wis. 2d 429
,
655 N.W.2d 752
,
02-1919
.
Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1) and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H.
2004 WI 47
,
271 Wis. 2d 1
,
678 N.W.2d 831
,
02-2860
.
As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the statute. It is fundamentally unfair to terminate parental rights based solely on a parent's status as a victim of incest. Monroe County DHS v. Kelli B.
2004 WI 48
,
271 Wis. 2d 51
,
678 N.W.2d 856
,
03-0060
.
Jennifer V.'
s holding is limited to appeals based on guilt or innocence. When a parent's pending appeal does not raise issues of guilt or innocence, “final judgment of conviction" in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M.
2004 WI App 106
,
272 Wis. 2d 816
,
684 N.W.2d 138
,
03-2687
.
A parent's prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of why children are removed from the parent's home. Reynaldo F. v. Christal M.
2004 WI App 106
,
272 Wis. 2d 707
,
684 N.W.2d 138
,
03-2687
.
Sub. (4) does not violate substantive due process by not requiring any evidence of parental unfitness. There are required steps that must be taken before reaching the application of sub. (4) in a TPR case and those steps form the foundation for the ultimate finding. At each of these steps, findings must be made that reflect on the parent's fitness. Dane County Department of Human Services v. P. P.
2005 WI 32
,
279 Wis. 2d 169
,
694 N.W.2d 344
,
03-2440
.
The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13), as he is a biological parent notwithstanding that he has not officially been adjudicated as the child's biological father, and may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child's biological father. State v. James P.
2005 WI 80
,
281 Wis. 2d 685
,
698 N.W.2d 95
,
04-0723
.
The notice requirement provision of sub. (4) (a) are a part of the clause pertaining to juvenile court orders, and are inapplicable to the clause pertaining to family court orders. The fact that s. 767.24 (4) (d) [now s. 767.41 (4) (d)] requires a family court to provide the applicable notice does not establish that provision of the notice is an element of proof under sub. (4). Kimberly S. S. v. Sebastian X. L.
2005 WI App 83
,
281 Wis. 2d 261
,
697 N.W.2d 476
,
04-3220
.
When a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent's incarceration, sub. (2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A parent's incarceration is not a sufficient basis to terminate parental rights. Other factors must be considered, such as the parent's relationship with the child both prior to and while the parent is incarcerated, the nature of the crime committed, the length and type of sentence imposed, the parent's level of cooperation with the responsible agency and the department of corrections, and the best interests of the child. Kenosha County Department of Human Services v. Jodie W.
2006 WI 93
,
293 Wis. 2d 530
,
716 N.W.2d 845
,
05-0002
.
Sub. (10) (b) requires that within the 3 years prior a court has terminated the parent's rights to another child in an involuntary termination proceeding, but does not require proof of which of the available 12 grounds set out in this section was the basis for the involuntary termination. Oneida County Department of Social Services v. Nicole W.
2007 WI 30
,
299 Wis. 2d 637
,
728 N.W.2d 652
,
05-2656
.
In determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under sub. (6), a circuit court must consider the biological father's efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. State v. Bobby G.
2007 WI 77
,
301 Wis. 2d 531
,
734 N.W.2d 81
,
06-0066
.
The 3-month abandonment ground under sub. (1) (a) 2. is effectively an exception to the more general requirement of 6 months of abandonment under sub. (1) (a) 3. The 3-month provision is a special scenario justifying a shorter abandonment period. When there is an active CHIPS order, it is a given that the child has been facing some kind of peril, and a shorter abandonment period is therefore appropriate and in the child's best interests. When a CHIPS order has been terminated or allowed to lapse, it is reasonable to assume that the parental situation has changed and the reason for the shorter abandonment period is no longer present. Heather B. v. Jennifer B.
2011 WI App 26
,
331 Wis. 2d 666
,
794 N.W.2d 800
,
10-2528
.
Sub. (1) (a) 2. requires that the 3-month abandonment period fall within the duration of a CHIPS-based placement of the child outside the parent's home. Heather B. v. Jennifer B.
2011 WI App 26
,
331 Wis. 2d 666
,
794 N.W.2d 800
,
10-2528
.
Under sub. (6) (a), a fact-finder must look to the totality-of-the-circumstances to determine if a parent has assumed parental responsibility. The phrase “have not had," does not direct the fact-finder to consider only a limited time period. Rather, the statute gives latitude to the fact-finder to consider the entirety of the child's life and determine if the parent's actions have been sufficient to find that he or she has assumed parental responsibility. Under the totality-of-the-circumstances test, a fact-finder may consider whether, during the time the parent was caring for his or her child, the parent exposed the child to a hazardous living environment. Tammy W-G. v. Jacob T.
2011 WI 30
,
333 Wis. 2d 273
,
797 N.W.2d 854
,
09-2973
.
Even though there is no restraint of the petitioner's liberty, the writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) when appellate counsel fails to appeal before the deadline. Under s. 809.82 (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition is filed by someone other than a representative of the public. If the court is not able to recognize the petitioner's right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G.,
2013 WI App 83
,
348 Wis. 2d 593
,
834 N.W.2d 432
,
13-0731
.
Subsection (2) (a) 1. makes the written notice in s. 48.356 (2), the CHIPS statute, an element to prove in a TPR case grounded in continuing CHIPS. The plain language of sub. (2) (a) 1. provides that the statutory notice requirements are satisfied when at least one of the CHIPS orders contains the written notice required under s. 48.356 (2). Sub. (2) (a) does not require that notice be given in every CHIPS order, and it does not require that notice be in the
last CHIPS order. St. Croix County Department of Health and Human Services v. Michael D.
2016 WI 35
, ___ Wis. 2d ___, ___ N.W.2d ___,
14-2431
.
The agency does not need to wait 6 months after the last out-of-home placement order is issued before filing a TPR petition under sub. (2) (a). Subsection (2) (a) 3. does not require that the 6-month period must be after the last CHIPS dispositional order or extension; rather, the 6-month period is a cumulative total period under the CHIPS orders. St. Croix County Department of Health and Human Services v. Michael D.
2016 WI 35
, ___ Wis. 2d ___, ___ N.W.2d ___,
14-2431
.
Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. A 3-factor test is discussed. Santosky v. Kramer,
455 U.S. 745
(1982).
Adoption and termination proceedings in Wisconsin: Straining the wisdom of Solomon. Hayes and Morse, 66 MLR 439 (1983).
