Section 809.107. Appeals in proceedings related to termination of parental rights.

 

(1)   Applicability. This section applies to the appeal of an order or judgment under s. 48.43 and supersedes all inconsistent provisions of this chapter.

(1m)   Definition . In this section, “appellant" means a person who files a notice of intent to pursue postdisposition or appellate relief.

(2)   Appeal or postdisposition motion.

(am) Appeal procedure; counsel to continue. A person seeking postdisposition or appellate relief shall comply with this section. If the person desires to pursue postdisposition or appellate relief, counsel representing the person during circuit court proceedings under s. 48.427 shall continue representation by filing a notice under par. (bm) , unless sooner discharged by the person or by the circuit court.

(bm) Notice of intent to pursue postdisposition or appellate relief. A person shall initiate an appeal under this section by filing, within 30 days after the date of entry of the judgment or order appealed from, as specified in s. 808.04 (7m) , a notice of intent to pursue postdisposition or appellate relief with the clerk of the circuit court in which the judgment or order appealed from was entered. Also within that time period, the appellant shall serve a copy of the notice of intent on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under s. 48.235 (1) (c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under s. 48.427 (3) . If the record discloses that final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the judgment or order appealed from on the day of the entry of the final judgment or order. The notice of intent shall include all of the following:

1. The circuit court case name, number, and caption.

2. An identification of the judgment or order from which the appellant intends to seek postdisposition or appellate relief and the date on which the judgment or order was entered.

3. The name and address of the appellant and the appellant's trial counsel.

4. For an appellant other than the state, whether the trial counsel for the appellant was appointed by the state public defender and, if so, whether the appellant's financial circumstances have materially improved since the date on which the appellant's indigency was determined.

4m. Whether the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief.

5. For an appellant other than the state, who does not request representation by the state public defender, whether the appellant will represent himself or herself or will be represented by retained counsel. If the appellant has retained counsel to pursue postdisposition or appellate relief, counsel's name and address shall be included.

(c) Early notice of intent to pursue postdisposition or appellate relief. If the record discloses that the judgment or order appealed from was entered after the notice of intent to pursue postdisposition or appellate relief was filed, the notice of intent shall be treated as filed after that entry and on the date of the entry.

(3)   Clerk to send materials. Within 5 days after a notice under sub. (2) (bm) is filed, the clerk of the circuit court shall do all of the following:

(a) If the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief, the clerk shall send to the state public defender's appellate intake office a copy of the notice of intent that shows the date on which the notice was filed, a copy of the judgment or order specified in the notice that shows the date on which the judgment or order was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings for which a transcript already has been filed with the clerk of circuit court.

(b) If the appellant does not request representation by the state public defender, the clerk shall send or furnish to the appellant, if the appellant is appearing without counsel, or to the appellant's attorney, if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which the judgment or order was entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript already has been filed with the clerk of circuit court.

(4)   Request for transcript and circuit court case record.

(a) State public defender appointment of counsel. Within 15 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under sub. (3) (a) , the state public defender shall appoint counsel for the appellant and request a transcript of the reporter's notes and a copy of the circuit court case record.

(b) Person not represented by public defender. An appellant who does not request representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record within 15 days after filing the notice of intent under sub. (2) (bm) . An appellant who is denied representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice of intent under sub. (2) (bm) .

(4m)   Filing and service of transcript and circuit court case record. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the appellant within 30 days after the transcript is requested. The clerk of circuit court shall serve a copy of the circuit court case record on the appellant within 30 days after the case record is requested, and shall indicate in the case record the date and manner of service.

(5)   Notice of appeal.

(a) Filing; and service of notice of appeal. Within 30 days after the later of the service of the transcript or the circuit court case record, unless extended under s. 809.82 , the appellant shall file a notice of appeal as provided in s. 809.10 and serve a copy of the notice on the persons required to be served under sub. (2) (bm) .

(am) Notice of abandonment of appeal. If the person who filed a notice of intent to appeal under sub. (2) and requested a transcript and case record under sub. (4) decides not to file a notice of appeal, that person shall notify the person required to be served under sub. (2) of this decision, within 30 days after the service of the transcript and case record under sub. (4) .

(b) Transmittal of record by clerk. The clerk of circuit court shall transmit the record to the court of appeals as soon as the record is prepared, but in no event more than 15 days after the filing of the notice of appeal.

(c) Requesting transcripts for other parties. The appellant shall request a copy of the transcript of the reporter's notes of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 5 days after the filing of the notice of appeal.

(d) Statement on transcript. The appellant shall file a statement on transcript with the clerk of the court of appeals, shall file a copy of the statement on transcript with the clerk of circuit court, and shall serve a copy of the statement on transcript on the other parties to the appeal within 5 days after the filing of the notice of appeal in the circuit court. The statement on transcript shall either designate the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

(e) Service of transcript on other parties. The court reporter shall serve copies of the transcript on the parties indicated in the statement on transcript within 5 days after the date the appellant requested copies of the transcript under par. (c) .

(5m)   No-merit reports. A s. 809.32 no-merit report, response, and supplemental no-merit report may be filed in an appeal from an order or judgment terminating parental rights. The appointed attorney shall file in the court of appeals and serve on the client-parent the no-merit report and certification within 15 days after the filing of the record on appeal. The appointed attorney shall serve on the client-parent a copy of the transcript and the record on appeal at the same time that the no-merit report is served on the client-parent. The client-parent may file in the court of appeals a response to the no-merit report within 10 days after service of the no-merit report. Within 5 days after the response to the no-merit report has been filed in the clerk's office, the clerk shall send a copy of the response to the appointed attorney. The attorney may file a supplemental no-merit report and affidavit within 10 days after receiving the response to the no-merit report.

(6)   Subsequent proceedings in court of appeals; petition for review in supreme court. Subsequent proceedings in the appeal are governed by the procedures for civil appeals and the procedures under subch. VI , except as follows:

(a) Appellant's brief-in-chief. The appellant shall file a brief within 15 days after the filing of the record on appeal.

(am) Motion for remand. If the appellant intends to appeal on any ground that may require postjudgment fact-finding, the appellant shall file a motion in the court of appeals, within 15 days after the filing of the record on appeal, raising the issue and requesting that the court of appeals retain jurisdiction over the appeal and remand to the circuit court to hear and decide the issue. If the court of appeals grants the motion for remand, it shall set time limits for the circuit court to hear and decide the issue, for the appellant to request transcripts of the hearing, and for the court reporter to file and serve the transcript of the hearing. The court of appeals shall extend the time limit under par. (a) for the appellant to file a brief presenting all grounds for relief in the pending appeal.

(b) Respondent's brief. The respondent shall file a brief within 10 days after the service of the appellant's brief.

(c) Appellant's reply brief. The appellant shall file within 10 days after the service of the respondent's brief a reply brief or statement that a reply brief will not be filed.

(d) Guardian ad litem's brief. If the guardian ad litem appointed under s. 48.235 (1) (c) for the child who is the subject of the proceeding takes the position of the appellant, the guardian ad litem's brief shall be filed within 15 days after the filing of the record on appeal with the court of appeals. If the guardian ad litem takes the position of a respondent, the guardian ad litem's brief shall be filed within 10 days after service of the appellant's brief.

(e) Decision. Cases appealed under this section shall be given preference and shall be taken in an order that ensures that a decision is issued within 30 days after the filing of the appellant's reply brief or statement that a reply brief will not be filed.

(f) Petition for review. A petition for review of an appeal in the supreme court, if any, shall be filed within 30 days after the date of the decision of the court of appeals. The supreme court shall give preference to a petition for review of an appeal filed under this paragraph.

1993 a. 395 ; 1995 a. 275 ; Sup. Ct. Order No. 00-02 , 2001 WI 39, 242 Wis. 2d xxvii; 2005 a. 293 ; Sup. Ct. Order No. 05-07 , 2006 WI 37, 287 Wis. 2d xix; Sup. Ct. Order No. 04-08 , 2008 WI 108, filed 7-30-08, eff. 1-1-09; 2015 a. 128 .

Note

1993 Wis. Act 395 contains explanatory notes. Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Note, 2001: Titles and subtitles were added. Subsection (4) is amended to require that the person who files a notice of intent to appeal must request a copy of the circuit court case record within 15 days after filing the notice of intent to appeal. Subsection (4) also requires the clerk of the circuit court to serve a copy of the circuit court case record upon the person requesting it within 30 days after the date of the request. Microsoft Windows NT 6.1.7601 Service Pack 1 Former sub. (5) is recreated as subs. (5) (a) and (b). Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (5) (c) requires the appellant to request a copy of the transcript for the other parties to the appeal, and to make arrangements to pay for those copies, within 5 days after filing the notice of appeal. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (5) (d) requires the appellant to file a statement on transcript within 5 days after filing the notice of appeal. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (5) (e) requires the court reporter to serve copies of the transcript on the other parties to the appeal within 5 days after the appellant requests the copies. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (5m) codifies Brown County v. Edward C.T ., 218 Wis. 2d 160 , 579 N.W.2d 293 (Ct. App. 1998), 98-0075 , which extends the no-merit procedure to TPR cases. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (6) (am) provides a procedure for ineffective assistance of counsel claims and other claims that require fact-finding after the final judgment or order has been entered. [Re Order No. 00-02 effective July 1, 2001] Microsoft Windows NT 6.1.7601 Service Pack 1 Judicial Council Note, 2006 : The creation of s. 809.107 (2) (am) requires counsel representing a parent who wants to appeal the TPR disposition to file a notice of intent to pursue postdisposition or appellate relief. Trial counsel's representation continues until the notice of intent is filed. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection 809.107 (2) (bm) contains the substance of former sub. (2). The amendment adds the case number to the content requirements for the notice of intent. Subsection (2) (bm) 2. deletes a reference to the date on which the judgment or order was granted because the time limits in s. 808.04 (7m) commence on the date the judgment or order was entered. Microsoft Windows NT 6.1.7601 Service Pack 1 The amendment to s. 809.107 (2) (c) addresses the practical concern that arises when a notice of intent is filed before the final judgment or order is entered. Similar to s. 808.04 (8), the amendment allows the filing date of the notice of intent to be deemed the date that the judgment or order was entered, and thereby preserves appellate jurisdiction. Microsoft Windows NT 6.1.7601 Service Pack 1 To facilitate compliance with the time limits in this section, the amendment to (3) requires the clerk to send a copy of the judgment or order that shows the date on which it was entered and a list of transcripts already on file to the state public defender's intake office, or to the person if appearing without counsel, or to retained counsel. Microsoft Windows NT 6.1.7601 Service Pack 1 New s. 809.107 (4) (a) codifies existing practice and establishes a time limit for the state public defender to appoint counsel and request transcripts and circuit court case records. The public defender's time limit commences on the date that the public defender's office receives the materials from the circuit court clerk, rather than on the date the notice of intent is filed, so as to reduce the number of extension motions that must be filed when the clerk does not timely send the materials under sub. (3) (a). Microsoft Windows NT 6.1.7601 Service Pack 1 The amendment to s. 809.107 (4) (b) clarifies the procedure applicable to persons who are not represented by the state public defender and creates time limits applicable to a person who has applied for and has been denied public defender representation. In the latter case, the rule provides an additional 15 days for the person to obtain private counsel and request a copy of the transcript and case record. The time limit is set at 30 days because 15 days will have expired while the public defender's office determines whether the person is eligible for appointed counsel. This time limit commences on the date the notice of intent was filed, rather than the date of the public defender's determination because that determination does not appear in the case record. Microsoft Windows NT 6.1.7601 Service Pack 1 Subsection (4m) includes the last two sentences of former sub. (4). Subsection (4m) also creates a new requirement for the circuit court clerk to indicate the date and manner of service in the case record. The new requirement is necessary because the notice of appeal time limit is measured from the date of service of the case record or transcript, whichever is later. Microsoft Windows NT 6.1.7601 Service Pack 1 The amendment to s. 809.107 (5) (a) clarifies that the time limit for filing a notice of appeal commences 30 days from the later of the service of the transcript or case record. Persons contemplating filing a notice of appeal are better able to assess grounds for relief after reviewing both the transcripts and the circuit court case record. [Re Order No. 05-07 effective July 1, 2006] Microsoft Windows NT 6.1.7601 Service Pack 1 Time limits imposed by the legislature in sub. (6) did not constitute unconstitutional infringements on the judiciary, as they are subject to court modification. Time limits imposed by sub. (5) did not violate constitutional guarantees of due process or effective assistance of counsel. Interest of Christopher D. 191 Wis. 2d 681 , 530 N.W.2d 34 (Ct. App. 1995). Microsoft Windows NT 6.1.7601 Service Pack 1 The no merit appeal procedure under s. 809.32 and the authority to extend the time for filing a notice of appeal under s. 809.82 (2) do not apply to appeals regarding terminations of parental rights. Gloria A. v. State, 195 Wis. 2d 268 , 536 N.W.2d 396 (Ct. App. 1995), 95-0315 . Microsoft Windows NT 6.1.7601 Service Pack 1 While s. 809.32 relating to no merit reports does not apply to appeals under this section, the filing of a no merit report is not precluded if the notice of intent and notice of appeal under subs. (2) and (5) are timely filed and the report is filed within the time for filing the appellant's brief under sub. (6) (a). Brown County v. Edward C.T. 218 Wis. 2d 160 , 579 N.W.2d 293 (Ct. App. 1998), 98-0075 . Microsoft Windows NT 6.1.7601 Service Pack 1 Despite the express service provisions in this section, service does not initiate the appeal and confer jurisdiction, filing does. Carla B. v. Timothy N. 228 Wis. 2d 695 , 598 N.W.2d 924 (Ct. App. 1999), 99-0853 . Microsoft Windows NT 6.1.7601 Service Pack 1