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COA holds, in unpublished but citable decision, that the preponderance of the evidence standard applies at a TPR dispositional hearing

State v. H.C., 2023AP1950, 3/5/24, District I (one-judge decision; ineligible for publication); case activity

In an interesting decision that seems almost guaranteed to invite review by SCOW, COA departs from the plain language of the statute and reads a burden of proof requirement into the TPR dispositional procedure.

Before we get into the meat of this important TPR case, a little background might be helpful for those readers who have not followed the “burden of proof” saga with bated breath. In 2021, COA kicked things off when it issued its unpublished, but citable, decision in A.G. I. In that case, the parent was told, when entering a no-contest plea, that the State would have the burden of proving that termination was in the best interest of the child at the dispositional phase. (¶17). Looking to the plain language of the statute, COA agreed this was a plea colloquy defect meriting an evidentiary hearing on the parent’s motion to withdraw their plea. (Id.). It could not have been clearer on this point: “There is not a burden of proof placed on the State.” (Id.). No one appealed that decision and, following an adverse ruling in the circuit court, A.G. prevailed in COA, which again ruled in his favor.

SCOW then accepted the State and GAL’s petitions for review. Unfortunately, the fractured decision failed to clarify much of anything. R.G. Bradley, who authored the “mandate” of the court–joined by Chief Justice Ziegler–accepted the argument that the statute does not apply a specific burden of proof to the dispositional hearing but ultimately held that this erroneous statement was irrelevant to the knowing and intelligent nature of A.G.’s plea. (¶33). However, Justice Dallet–writing in dissent and joined by Justice A.W. Bradley–expressed some skepticism about the burden of proof issue and included a lengthy footnote seeming to invite further litigation on that point. (¶59). Given the existence of numerous other similar “A.G.” cases in the appellate pipeline, SCOW is now poised to consider another similar appeal in B.W., which will be argued in March.  However, it is unclear, at this juncture (and considering the confidential nature of the filings), whether B.W. neatly provides an opportunity to resolve, once and for all, this vexing “burden of proof” issue.

Enter H.C., in which COA boldly wades into these turbulent waters and confronts the “burden of proof” issue head-on. Following Justice Dallet’s lead in her separate writing in A.G., the appellant in this case argues that Wisconsin’s dispositional statute (§ 48.426) is “facially unconstitutional because it does not define a burden of proof for the State at the dispositional phase of a proceeding to terminate parental rights.” (¶15).

Relying on SCOTUS’ decision in Santosky v. Kramer, H.C. argues that the State needs to prove that termination is in the best interest of the child by clear and convincing evidence. (¶16). The State argues that the statute is constitutional and that, just as COA held in A.G. I, the statute itself does not impose a burden of proof. (¶18). It believes that assigning a burden would be “imprudent” because it would limit the ability of the circuit court to consider important evidence at disposition. (Id.). The GAL, however, is unconcerned by these practical considerations. Instead, the GAL asks COA to hold that the preponderance of the evidence standard “should” apply at the dispositional stage of the proceedings. (¶19). COA accepts the arguments of the GAL and holds that due process requires reading a preponderance of the evidence standard into § 48.426. (¶20).

While at first blush Santosky–rejecting as unconstitutional a NY TPR procedure which utilized a preponderance standard–appears to be controlling, COA points out that Santosky was not evaluating the second stage of a TPR, the disposition; rather, it was examining a procedure under which the preponderance standard applied to the grounds phase. (¶26). While that distinction eliminates much of the force of Santosky, its reliance on the three-factor Mathews v. Eldridge test to determine the amount of “process due”  is still useful for evaluating what burden should apply at Wisconsin’s dispositional phase. (Id.).

The first factor evaluates the interests at stake in the procedure. (¶28). While parents obviously have an important interest in retaining a relationship with their child, COA holds that the force of this “interest” is reduced at the dispositional phase and must cede primacy to the best interest of the child, which is the “paramount concern at disposition.” (Id.). As to the second factor, the risk of error, the Court acknowledges that while a dispositional hearing remains an adversarial contest, the risk of error is reduced given that the parent has already been found unfit. (¶29). Likewise, the “dynamics” of a dispositional hearing are different when compared to the trial that occurs at the grounds phase; in contrast to that highly adversarial contest, the dispositional phase is much more permissive in terms of what evidence can be considered and presented. (¶30). Finally, as to the third factor–seeking to evaluate the countervailing State interests at play–the State has an increased interest in achieving permanency for the child given the finding of unfitness at the grounds phase. (¶32). Moreover, imposing a preponderance standard on the State would not create an additional burden–fiscal or otherwise–for the State. (Id.).

Having established that the preponderance of the evidence standard should apply, COA makes two final observations. First, it notes that “the burden is not solely placed on the State. Rather, to account for the ability of all parties to present evidence and arguments at the disposition, we consider it a common burden of proof wherein each party bears the burden to show by a preponderance of the evidence that its desired outcome—be it termination or preservation of parental rights—is in the best interest of the child.” (¶35). Second, it clarifies that “it remains within the circuit court’s discretion to determine the best interest of the child.” (¶36).

Having resolved the meaty constitutional issue, COA therefore swats away H.C.’s arguments that the circuit court otherwise erroneously exercised its discretion when it terminated his parental rights by repeating its usual comments about the nearly insurmountable standard of review applicable to such discretionary decisions. (¶¶37-43).

We admit: This is a lengthy post, even by our long-winded standards. But the significance of this opinion warrants it, as this decision–by imposing a standard of proof which is not found in the statutes–will almost certainly cause further conflict in the courts, as litigants grapple over the persuasiveness of its non-binding holding. The issue is novel and, barring a neat resolution of this issue in B.W., the case is almost certainly SCOW-bound. At the very least, there remains a vexing notice issue for litigants like H.C., who could not have known what standard would apply at the dispositional phase given that this unpublished decision is the first time COA has seen fit to define one.

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