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Ch. 48 does not require transfer of child custody to a relative after parental rights are terminated

State v. Jevon S.  Appeal Nos. 2014AP1426 & 2014AP1427; State v. Latoya M., Appeal Nos. 2014AP1424 & 2014AP1425, District 1, 9/16/14 (one-judge opinions, ineligible for publication); (case activity for Jevon S.; case activity for Latoya M.)

Jevon S. and Latoya M. appealed orders terminating their parental rights. Neither contested the grounds for termination, but at their joint dispositional hearing they both wanted their two children removed from their separate foster homes and placed with Jevon’s mother. The circuit court ruled against them, and the court of appeals affirmed.

Because the record for a TPR case is confidential, it is difficult to ascertain Jevon’s and Latoya’s primary arguments on appeal.  Judging from the court of appeals’ opinion, they seem to have claimed that two provisions of Chapter 48 required the circuit court to transfer custody of their children to a relative rather than place (or keep) them in foster homes.  The court of appeals rejected this contention:

Contrary to Jevon’s implication, neither Wis. Stat. § 48.355(1) nor Wis. Stat. § 48.427 require a circuit court to transfer custody to a relative. Wisconsin Stat. § 48.355(1), states, as relevant, that “[i]f there is no less drastic alternative for a child than transferring custody from the parent, the judge shall consider transferring custody to a relative whenever possible.” (Emphasis added.) Wisconsin Stat. § 48.427 permits the circuit court to transfer custody to a relative as one of many potential dispositions. No statute obligates a circuit court to place a child with a family member if the court finds that such placement is not in the child’s best interest. Rather, Wis. Stat. § 48.426(2) establishes the “best interest of the child” as the prevailing factor in all TPR dispositions.  Slip op. ¶18.

The court of appeals then reviewed the circuit court’s application of the “best of the child” factors, found that it properly exercised its discretion, and affirmed its decision to keep the children in their respective foster homes.

Once again, Judge Kessler (who wrote Jevon S.) went out of her way to compliment the brief by the GAL,  Cynthia Lepkowski :

We express our thanks to the guardian ad litem for the children in these proceedings. We appreciate the clear analysis, the detailed citations to the record, and the thorough and careful presentation of the circuit court’s findings. Her brief in this case was of great assistance to this court. Slip op. ¶27 n.4.

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