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Dad held to have consented to the termination of his parental rights despite misunderstanding the outcome

Walworth County D.H.S&S v. A.J.S., 2018AP1562, 1/2/19, District 2 (1-judge opinion, ineligible for publication); case activity

On Point doesn’t have access to TPR briefs. But judging from the court of appeals opinion, A.J.S. understood that if he voluntarily agreed to terminate his parental rights to his daughter under §48.41, then his mother would become her adoptive parent. Shortly before the hearing A.J.S. was surprised to learn that this outcome was not guaranteed. And, indeed, it did not come to pass.

On appeal, A.J.S. argued that his consent to the termination of his parental rights was involuntary because he was not adequately informed of the consequences. Before accepting a parent’s consent to a TPR, a court must ascertain certain information including the following:

1. the extent of the parent’s education and the parent’s level of general comprehension;
2. the parent’s understanding of the nature of the proceedings and the consequences of termination, including the finality of the parent’s decision and the circuit court’s
3. the parent’s understanding of the role of the guardian ad litem (if the parent is a minor) and the parent’s understanding of the right to retain counsel at the parent’s
4. the extent and nature of the parent’s communication with the guardian ad litem, the social worker, or any other adviser;
5. whether any promises or threats have been made to the parent in connection with the termination of parental rights;
6. whether the parent is aware of the significant alternatives to termination and what those are.

T.M.F. v. Children’s Servs. Soc’y of Wis., 112 Wis. 2d 180, 196-197, 332 N.W.2d 293 (1983):

The court of appeals does not say which factor(s) were at issue in this appeal. It acknowledges that A.J.S.’s answers to various questions during the hearing “revealed some uncertainty of the nature of the proceeding and possible outcomes that could follow his decision.” (Opinion, ¶9). However, it concluded that his consent was voluntary citing two specific transcript excerpts. See if they convince you.

This is an exchange between the court and A.J.S.:

Q [A.J.S.], do you think your decision is in [M.R.S.’s] best interest?
A Yes.
Q Will you tell the Court why?
A Umm—Because hopefully she gets to go with her grandmother, blood relative. That’s why I believe it’s in her best interest at this moment.
Q And you understand that she may not end up with … your mom though, right?
A Yeah. Yep. I guess. I heard some situations happen that could happen—occur.
Q And you understand she’s not even placed with your mom now, right?
A Yep. (Opinion, ¶16).

And this is how the circuit court responded when A.J.S.’s mom asked whether he could see his daughter after she became the adoptive parent:

Let me clarify that by sort of assuming a couple facts and then taking it from there. So there’s been a lot of discussion about you adopting [M.R.S.]. And let’s assume for the sake of our discussion that that happens. That ultimately that’s what occurs in this case, you go through a court proceeding, the judge, me or someone else, grants your right to adopt [M.R.S.], that occurs and now you’re her parent from a legal perspective, okay.

There’s not much case law regarding §48.41. A quick search on Westlaw yielded only T.M.F. mentioned above and A.B. v. P.B., 151 Wis. 2d 312, 444 N.W.2d 415 (Ct. App. 1989); Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634; and Crystal L.S. v. Lutheran Social Services, 2009 WI App 95, 320 Wis. 2d 485, 769 N.W.2d 878 (unpublished).

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