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Circuit court can’t stay order terminating parental rights

State v. D.P.V., 2016AP2037, District 1, 2/14/17 (one-judge decision; ineligible for publication); case activity

A circuit court does not have the authority to stay an order terminating parental rights.

After a jury found grounds to terminate D.P.V.’s parental rights based on continuing CHIPS and failure to assume parental responsibility, the circuit court order his rights to be terminated, but then stayed the order for six months, subject to further review by the court and on the condition D.P.V. comply with the CHIPS order and the terms of his probation. The circuit court conceded the lack of any specific legal authority for the stay, saying it was relying on its inherent authority to do all things necessary to carry out its functions. (¶¶5-10).

¶3      We agree with the State that the trial court lacked the authority for the stay. The legislature’s enumeration of procedures for disposing of TPR matters under Wis. Stat. Ch. 48 is exclusive. State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974). Significantly, Chapter 48 includes no provision for staying a TPR order and mandates that the court shall enter an order or dismiss if the TPR is not warranted. Wis. Stat. §§ 48.427(1)[, (1m), (2), and] (3). Chapter 48 expressly states that its policy is to create timely permanence for children. In addition to the policy statement in [§] 48.01, Chapter 48 creates time deadlines to discourage delays in disposition of such cases. …. Additionally the legislature created a fast-tracked appellate procedure for TPR appeals in Wis. Stat. § 806.08 [sic]. Accordingly, this court concludes that the provision staying the order is without authority, vacates that part of the order imposing a stay, and affirms the order as modified.

The court’s detailed analysis of the lack of authority to stay the TPR order is at ¶¶23-32.

The court rejects D.P.V.’s argument that the TPR order wasn’t final, and therefore could not be appealed. The special rules governing fast-tracked TPR appeals under § 809.107 don’t apply the test of “finality” for standard appeals under § 808.03(1) (¶¶13-16), and even if the usual finality rule applied the order here satisfied it because the court intended the order to be final for purposes of appeal (¶¶17-20). The court also rejects D.P.V.’s argument that if the stay provision is invalid, the entire TPR order is invalid, as it concludes the stay provision is easily divisible from the TPR order. (¶¶33-39).

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