State v. H.C., 2025 WI 20, 6/3/25, affirming an unpublished court of appeals decision; case activity
In a decision that has been awaited by TPR practitioners, all seven justices affirm COA’s mandate, with five justices joining in a majority opinion which concludes there is no burden of proof applicable at a dispositional hearing.
As we’ve previously summarized, the TPR statutes are silent as to whether there is a burden of proof applicable at a dispositional hearing under § 48.426. That issue is not in dispute in this appeal. (¶30). Instead, in light of COA’s conclusion that a preponderance standard applies, “H.C. argues the Due Process Clause of the Fourteenth Amendment and public policy considerations require the State to prove by clear and convincing evidence—or at least a preponderance of the evidence—that termination is in the best interests of the child.” (¶1). Ultimately, however, SCOW holds that the “the best interests of the child governing the dispositional phase of a TPR proceeding constitutes a discretionary determination by the circuit court and the statute places no burden of proof on a particular party.” (¶3).
Beginning with due process, SCOW emphasizes that the requirements of that constitutional provision are flexible and context-dependent. (¶18). While H.C. relies on a decision from SCOTUS, Santosky v. Kramer, for the proposition that a clear and convincing standard should apply at disposition, that case addressed the standard applicable at the fact-finding stage–a crucial distinction in SCOW’s view. (¶19).
During the dispositional phase–and in contrast to the grounds phase in a TPR–“the circuit court does not find facts—it makes a discretionary decision to terminate parental rights, or not.” (¶20). The dispositional phase occurs after the State has been held to its burden of proof and the factual question–the parent’s unfitness–has been determined. (¶21). Because the State has already met its burden during the grounds phase, “the private interests of the parties shift dramatically, and the requisite procedural safeguards reflect that shift.” (¶22). As a result, “In contrast to the grounds phase of a TPR case, the dispositional hearing bears little resemblance to an adversarial proceeding.” (¶26).
Instead, once the case reaches disposition, the proceedings are more analogous to a criminal sentencing, which also does not apply a standard of proof. (¶26). In essence, “The constitutionally required procedural safeguards protecting a parent’s interests during the grounds phase logically end once the State establishes the parent’s unfitness. At that point, the child’s best interests become the court’s paramount consideration as a matter of law.” (¶27).
Moreover, SCOW holds that imposing a burden of proof upon the petitioner would actually frustrate the court’s task of determining what is in the “best interest” of the child. Under H.C.’s reading, the court could be forced to dismiss a petition due merely to the evidentiary failings of one party, even though that decision might be contrary to the best interest of the child at issue. (¶28). SCOW also holds that the statutory factors and the law governing discretionary decisions is sufficient to meet due process guarantees. (¶29).
Finally, SCOW rejects an argument that the ordinary civil burden–a preponderance–applies under COA’s prior decision in T.M.S. . (¶31). That case, however, analyzed the disposition procedure applicable in CHIPS proceedings, which explicitly involve fact-finding under the plain text of the CHIPS statute. (Id.). “At disposition in a TPR matter, no factfinding occurs; accordingly, no party bears any burden of proof.” (Id.).
Two justices (A.W. Bradley and Dallet) concur. Because the lower court in this case stated that the case for termination had been proven regardless of the standard applied, those justices agree with COA’s decision affirming the circuit court. (¶33). However, they believe “the general civil burden of preponderance of the evidence should apply, and such a burden should be on the petitioner.” (¶34).
And with that, our long burden of proof saga comes to an end. Given the straightforward nature of SCOW’s decision, there isn’t much analysis needed. We pause only briefly to remind our readers that many cases were stayed pending this outcome. As of the date this decision was issued, those stays are presumably lifted. If you are an advocate in such a position, this is your reminder to check your deadlines carefully, as many previously stayed cases will now re-enter active litigation.
