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Voluntary TPR reversed; circuit court lacked proper evidentiary foundation to support decision to terminate

Caroline P. v. Shawn H., 2014AP2004 & 2014AP2005, District 3, 6/24/15 (one-judge decision; ineligible for publication); case activity

Even if the circuit court considered the statutory factors for termination of parental rights under § 48.426, the court lacked an evidentiary foundation in the record to make a determination as to whether termination was in the best interests of the child.

Frustrated by what she claimed were her ex-husband’s persistent denial of her right to custody and visitation of their two children, Caroline took to filing voluntary petitions to terminate her parental rights, saying she was effectively being denied her parental rights anyway, so why keep paying support? (¶¶3-8). After conducting a colloquy with Caroline, the circuit court accepted her termination as informed and voluntary, § 48.41(2)(a), and then went on to consider the best interests of the children. (¶9).

Apart from the fact that (as even the GAL concedes (¶15)) the circuit court didn’t systematically address the six factors under § 48.426, the court of appeals agrees with Caroline that “much of what the court relied upon in its decision making—[her ex-husband’s] statements, and the guardian ad litem’s report and recommendation—are, without meritorious dispute, simply not evidence.” (¶17). The court rejects the GAL’s claim that the record as a whole provides sufficient evidence:

¶23      …. We acknowledge the court was well acquainted with the facts of the family’s case. Further complicating this particular termination hearing was its voluntary nature—no fact-finding hearing was required in the first stage of proceedings as the court instead only needed to determine whether Caroline’s consent to terminate was voluntary and informed. In addition, unlike most termination proceedings, the county department of social services was not involved. Thus, there were no mandated reports from a county department on which the court could rely in formulating an evidentiary basis.

¶24      Nevertheless, once the court was satisfied that Caroline’s consent was voluntary, it was required to “decide[], upon the evidence, whether termination [was] warranted.” A.B. [v. P.B.], 151 Wis. 2d [312,] 319-20[, 444 N.W.2d 415 (Ct. App. 1989)] (emphasis added). It could “either enter an order terminating parental rights,if the evidence supports termination, or dismiss the petition if the evidence does not.”  Id. at 320. (emphasis added). Although the court’s history with the family gave it background knowledge to draw upon, that does not create a sufficient record on which we can now rely to examine whether the court properly exercised its discretion. In addition, simply because a parent seeks to voluntarily terminate his or her parental rights does not relieve a circuit court from making specific allusions to the standard and factors set forth in Wis. Stat. § 48.426, and applying the facts of the case to the standard and factors.[10] See [Sheboygan County DHHS v.] Julie A.B., [2002 WI 95,] 255 Wis. 2d 170, ¶¶30-31 [, 648 N.W.2d 402] (“The court should explain the basis for its disposition, on the record, by alluding specifically to the factors in Wis. Stat. § 48.426(3) and any other factors that it relies upon in reaching its decision.”).

[10]  The guardian ad litem asserts, “The fact that this hearing was not uncontested [sic] should allow the circuit court greater latitude in its discretion when it comes to taking evidence, as well as identifying and discussing each of the factors in Wis. Stat. § 48.426(3).” Assuming the guardian ad litem meant to characterize the hearing as “not contested” or “uncontested,” and not the double negative that was transcribed, this assertion is unsupported by case law or policy considerations. The law on the termination of parental rights does not usually prescribe leniency in termination proceedings but more often reflects the gravity of such legal actions: “‘[T]ermination adjudications involve the awesome authority of the State to destroy permanently all legal recognition of the parental relationship. For these reasons, ‘parental termination decrees are among the most severe forms of state action.’” Evelyn C.R. [v. Tykila S., 2001 WI 110], 246 Wis. 2d 1, ¶20[, 629 N.W.2d 768] (quoted source omitted). Such language does not signify, to this court, that relaxed application of statutory standards would be appropriate, even in the context of a termination that on its face was voluntary.

Because the court finds that the record lacks evidentiary support for the circuit court’s best-interest determination and ultimate disposition decision, the court of appeals does not address the parties’ dispute over whether Caroline’s consent to terminate was voluntary and informed. (¶25).

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