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Child’s guardians can participate as a party in TPR proceeding

Green County DHS v. Barret W.S., 2014AP1155, District 4, 8/14/14 (1-judge; ineligible for publication); case activity

The circuit court didn’t err by allowing a child’s guardians to participate as a party in a proceeding to terminate the father’s rights to the child because, while ch. 48 does not expressly state that guardians are “parties” in a termination proceeding, pertinent statutes support allowing the guardians to participate as a party. In addition, the circuit court properly granted summary judgment against the father and didn’t err in making certain evidentiary rulings during the dispositional phase.

After the county petitioned to terminate Barret’s rights to Ella, his daughter, Ella’s guardians asked to participate as a party. The circuit court granted the request. The court of appeals finds no error for three reasons:

  • First, § 48.42(2)(c) includes a child’s guardian in the limited class of persons entitled to be served with the petition, and in David S. v. Laura S., 179 Wis. 2d 114, 143, 507 N.W.2d 94 (1993), “the supreme court strongly implied—and arguably decided—that the persons who receive a summons and petition under Wis. Stat. § 48.42(2) are accorded party status.” (¶24).
  • Second, ch. 48 contains provisions “giving guardians procedural rights on par with the child and parent in a termination proceeding.” (¶26). Specifically, § 48.29(1) provides that the guardian has the right to request a substitution of the assigned judge and refers to someone making such a request as a “party;” and § 48.31(1) and (2) provide that a guardian has the right to demand a jury trial at the fact-finding hearing.
  • Third, § 48.023, which describes the guardian’s duties and powers, shows those duties and powers are significant, and include responsibilities pertaining to legal matters. (¶28).

The court acknowledges that when, as in this case, the guardians are also prospective adoptive parents, the guardians’ participation as parties is problematic, especially during the grounds phase of the proceedings, because it raises the risk that a fact finder will, consciously or unconsciously, make an impermissible comparison between a child’s biological parent and a prospective parent. However, this problem can be avoided if the circuit court takes steps to limit the risk of an improper comparison, including by limiting testimony and instructing juries. (¶30).

The court does point out that allowing a guardian to participate as party should not be read to address the status of potential adoptive parents who are not court-appointed guardians. (¶30).

The court of appeals also affirms the grant of summary judgment based on abandonment, rejecting Barret’s argument that Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, holds some grounds are amenable to resolution by summary judgment while others, like abandonment, are not, because they can’t be proven by documentary evidence:

10      … Steven V. does not prescribe a different summary judgment rule for certain types of termination of parental rights cases. Rather, the Steven V. court simply makes the observation that, when applying normal summary judgment principles, it will often be true that a material factual dispute will prevent summary judgment in certain types of termination of parental rights cases. The summary judgment methodology used does not change ….

The court also rejects Barret’s claim that there’s a material factual dispute about his having contact with Ella through third parties during one of the alleged periods of abandonment, and under State v. Lamont D., 2005 WI App 264, 288 Wis. 2d 485, 709 N.W.2d 879, third-party contacts, if successful, allow a fact finder to determine he did not abandon Ella. (¶11). The court holds Barret conceded there was no factual dispute on this point (¶¶12-13); but even if he didn’t, and assuming Lamont D. supports his argument, there’s no evidence showing Barret attempted to communicate with Ella through a third party, much less that he successfully did so, during the time period. (¶¶15-18).

Finally, the court rejects Barret’s claim the circuit court “selectively” applied the rules of evidence regarding expert testimony and hearsay at the dispositional phase, where the rules of evidence aren’t binding, § 48.299(4)(b). (¶¶31-39).

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