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TPR — consideration of parent’s incarceration; exercise of discretion at disposition

State v. Roy W., 2013AP413, District 1, 5/29/13; court of appeals decision (1-judge; ineligible for publication); case activity

The court of appeals rejects Roy W.’s arguments that “virtually every” factor under § 48.426(3) weighed in his favor and that the only ground for terminating his parental rights was his sixteen month prison sentence. (¶1). Based on a lengthy review of the record and the circuit court’s reasoning for terminating Roy’s parental rights (¶¶2-9, 12-23), the court concludes:

¶25      As can be seen in the trial court’s decision, the fact that Roy W. was incarcerated did play a role in the finding of his unfitness and the termination of his parental rights; however, this was not the only factor which led to the termination of his parental rights.  Unlike the circumstances found in [Kenosha Cnty. DHS v.Jodie W., [2006 WI 93, ¶50, 293 Wis. 2d 530, 716 N.W.2d 845], where our supreme court concluded “that a parent’s incarceration is not itself a sufficient basis to terminate parental rights,” here other factors contributed to the outcome.

The court also reviews the factors under § 48.426(3) and concludes the trial court properly exercised its discretion when it determined that it was in the child’s best interests to be placed for adoption, with the expectation that his foster mother will adopt him. (¶¶27-33).


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