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TPR – Right to Post-Disposition Visitation, Vacated Order and Right to Reinstated Visitation

State v. Lorraine J. / Johnny J., 2010AP137, et al,District 1, 12/8/10

court of appeals decision (1-judge, not for publication); for Lorraine J.:  Melinda A. Swartz, SPD, Milwaukee Appellate; for Johnny J.: John J. Grau

TPR – Right to Post-Disposition Visitation

A termination order severs all parental rights, including visitation under § 48.43, ¶¶31-37.

TPR – Vacated Order and Right to Reinstated Visitation

Grant of a post-disposition motion, vacating the termination order and returning the petition to the grounds phase, did not require immediate reinstatement of visitation as a mater of due process, ¶¶38-52. Nor did the trial court rely on the improper standard (best interest of the child) when ruling on visitation, ¶¶53-59. On the merits, the trial court’s denial of visitation didn’t violate due process under the circumstances:

¶62      Lorraine’s and Johnny’s pre-August 2007 parenting and visitation failures led to the first TPR orders.  And their post-August 2007 visitation denials were due to their earlier failures and their continued lack of effort to demonstrate their fitness.  Neither contacted the children’s therapist, schools, foster families, social workers or did any act that showed their interest in the children’s development and needs. That, coupled with their historical failure to have successful visits with Tyanna and Taybianna, create a record supporting the trial court’s denial of visitation and the ultimate TPR orders.  Nothing in the record shows that the trial court’s decision was “arbitrary, wrong or oppressive” and it certainly does not “‘shock[] the conscience’” of this court.  See id., 279 Wis. 2d 169, ¶19 (citation omitted).  Accordingly, we conclude that neither Lorraine’s nor Johnny’s due process rights were violated.

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