On Point

Dane Co. DHS v. Dyanne M., 2007 WI App 129, District 4, 3/29/07 (published)

Competency of TPR Court – Statutory Time Limits, Generally

Issue/Holding:1: Generally, compliance with a statutory TPR time limit is mandatory, such that non-compliance results in lost circuit court competency absent an applicable exception, ¶5, citing Dane Co. DHS v. Susan P.S., 2006 WI App 100, ¶63.

Issue/Holding:2: The following is a non-exhaustive list of examples of lost judicial competency for lapse of a time limit without obtaining a proper extension under § 48.315, ¶9:

• The 30-day time limit for holding an initial hearing. Wis. Stat. § 48.422(1); Brown County v. Shannon R., 2005 WI 160 ¶¶2, 74, 81-82, 286 Wis. 2d 278, 706 N.W.2d 269; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7-10.
• The 45-day time limit for holding a fact-finding hearing. Wis. Stat. § 48.422(2); State v. Robert K., 2005 WI 152, ¶¶2, 16-17, 286 Wis. 2d 143, 706 N.W.2d 257; Matthew S., 282 Wis. 2d 150, ¶¶1-2, 13-18.
• The 45-day time limit for holding a dispositional hearing. Wis. Stat. § 48.424(4); State v. Quinsanna D., 2002 WI App 318, ¶¶2, 34-37, 259 Wis. 2d 429, 655 N.W.2d 752; April O., 233 Wis. 2d 663, ¶¶1, 4-5, 7, 11-12.

Competency of TPR Court – Statutory Time Limits – Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order

Issue:  Whether failure to enter the written TPR dispositional order within the 10-day time limit of § 48.427(1) causes the circuit court to lose competency over the case.

Holding: A circuit court loses competency to proceed in a TPR when it fails to comply with a time limit between critical adjudication stages, ¶8, but entry of the written order was not such a “critical stage”:

¶11 … We conclude, however, that the circuit court here did not lose competency because it fully adjudicated the TPR proceeding and made all the decisions it was required to make in its oral decision and order prior to expiration of the 10-day time limit.

¶12 After hearing evidence at a dispositional hearing, a circuit court must make a number of decisions. The decisions that must be made depend on the circumstances and are set forth in several statutes. …

¶13 … Here, in light of both the court’s decision to terminate Dyanne’s parental rights and Artavia’s custody and adoption needs, three rulings were required … The circuit court’s oral decision contains all three rulings. …

¶14 Having made these rulings, there was nothing left for the circuit court to adjudicate. It follows that the “critical stages within the adjudication process” concluded when the court rendered its oral decision. Moreover, because the 10-day time limit in Wis. Stat. § 48.427(1) had not passed when the circuit court ruled orally, any subsequent failure to comply with that time limit did not deprive the circuit court of competency. The net effect of our holding is that, as long as the required rulings are made within the 10-day time limit, even if they are oral, the court does not lose competency.

State v. Bobby G., 2007 WI 77, reversing a summary order remanding the case to the court of appeals.

Issue/Holding:

¶5 For the reasons set forth, we hold that in determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under Wis. Stat. § 48.415(6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. Thus the circuit court in the instant case proceeded under an erroneous interpretation of the statute. Accordingly, the facts were not fully developed; to the extent facts were developed, these facts and their import are in dispute. The parties disputed whether Bobby G. assumed parental responsibility after he learned of his paternity but before adjudication of the grounds for termination. Accordingly, with facts in dispute, the circuit court erred as a matter of law in granting partial summary judgment. Moreover, Bobby G. requested a jury trial, which the circuit court denied because it erroneously found no material facts or inferences therefrom in dispute. Neither the circuit court nor this court can deprive Bobby G. of a jury trial by deciding the factual dispute. [6]

[6] A circuit court may direct a verdict in the grounds phase of a termination of parental rights proceeding. Door County DHFS v. Scott S., 230 Wis. 2d 460, 465, 602 N.W.2d 167 (Ct. App. 1999).

The opinion weighs in at 71 pages, ¶155¶¶, much of it consumed by lengthy recitation of the legislative history. In any event, if you provide TPR representation you’ll want to read the whole thing. If there’s a meta-message it might be: just because summary judgment is authorized doesn’t mean it’s favored.

¶90 Bobby G.’s responses to the State’s interrogatories should have alerted the circuit court that Bobby G. was trying to establish a parental relationship with Marquette after he had reason to believe that he was Marquette’s father. Summary judgment was inappropriate because material facts were presented disputing the State’s claim that Bobby G. never assumed parental responsibility for Marquette.

And very much relatedly: “The legislature expressly intended to protect, whenever appropriate, the biological family unit,” ¶57. If there’s any doubt on these points, chew on the opening lines of the dissent:

¶111 Could a cocaine- pushing, woman-battering man, who does not even know about the existence of his child, have accepted and exercised “significant responsibility for the daily supervision, education, protection and care of the child”? Wis. Stat. § 48.415(6)(b) (2003-04).

¶112 If that is too close of a call, consider the same question, only the person admitted he never exercised responsibility for the daily supervision of the child, never exercised responsibility for the education of the child, never paid child support, and never met the child. Plus, he has been incarcerated for the vast majority of the child’s life.

¶113 The circuit court answered no. Such a person has not assumed parental responsibility pursuant to Wis. Stat. § 48.415(6). The majority concludes the circuit court erred. “[T]he circuit court in the instant case proceeded under an erroneous interpretation of the statute” by failing to “consider the biological father’s efforts undertaken after he discover[ed] that he is the father but before the circuit court adjudicate[d] the grounds of the termination proceeding.” Majority op., ¶5.

¶114 The plain language of the Children’s Code contradicts the majority’s interpretation of § 48.415(6). Accordingly, I respectfully dissent

Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)

Issue/Holding: The trial court properly exercised discretion in terminating rights:

¶25 Teodoro finally argues that at the dispositional stage, the trial court erroneously determined that termination of his parental rights would be in the best interests of the children. This determination is committed to the circuit court’s discretion, and will not be overturned unless that discretion is erroneously exercised. See Sheboygan County DHHS v. Julie A.B., 2002 WI 95, ¶¶42-43, 255 Wis. 2d 170, 648 N.W.2d 402. Teodoro acknowledges some of the evidence that the court relied on in coming to its decision, including Adrianna’s psychologist’s opinion that there was not a substantial relationship between Teodoro and Adrianna and various indications that the children are doing much better since their separation from Teodoro. Teodoro’s only argument is to say that the court inappropriately “blamed” him for everything and to make the conclusory statement that “Adrianna and Antonio should be allowed to live with their father in Mexico.” He has presented nothing that would cause us to question the circuit court’s discretionary determination that termination is in the children’s best interest. We affirm.

Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)

Issue/Holding: Conditions imposed for non-termination of a deported parent’s children weren’t impossible, notwithstanding parent’s inability to return to country:

¶23 But as the circuit court noted, “Mexico is not prison” and Teodoro remained free to work on and meet many of the conditions of return. As an example, the first condition, “Show that you are interested in your child,” includes subparts that deportation should not have prevented Teodoro from meeting, such as “[t]alk to doctors, teachers, therapists and other people who care for your child to learn what your child needs … [and] [p]ay child support on a regular basis.” The trial court found that Teodoro did neither of these things, either in Mexico or earlier when he was in Waukesha; indeed, during the time that his wages were being garnished to pay child support, he sometimes asked for and received the money back from the children’s mother. We affirm the circuit court’s holding that the grounds for Teodoro’s termination were not based solely on impossible conditions and that Jodie W. therefore does not govern this case.

Allen A. Muth v. Frank, 412 F.3d 808 (7th Cir 2005)

Issue/Holding: AEDPA requirement of state court adjudication on merits requires neither “well-articulated or even correct decision”; state court need not offer any reasons, so that summary disposition would satisfy requirement. In short: it “is perhaps best understood by stating what it is not: it is not the resolution of a claim on procedural grounds.”

Followed: Joseph M. Malinowski v, Smith, 06-3075, 11/27/07 (state court’s rejection of argument solely on basis of discussion of state privilege nonetheless represents adjudication on merits of due process challenge).

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding:

¶46      We agree with Mayo’s position, and the State’s concession at oral argument, that the prosecutor’s remarks on Mayo’s pre-Miranda silence, and the testimony she elicited in that regard, during the State’s opening statement and case-in-chief, violated Mayo’s right to remain silent under the Fifth Amendment of the United States Constitution, and Article I, Section 8 of the Wisconsin Constitution. We have held that it is a “violation of the right to remain silent for the State to present testimony in its case-in-chief on the defendant’s election to remain silent during a custodial investigation, after arrest.” Brecht, 143 Wis. 2d at 310-11 (citation omitted). When a defendant testifies, “references by the State during cross examination, on redirect and in closing arguments to defendant’s pre-Miranda silence do not violate the defendant’s right to remain silent.” Adams, 221 Wis. 2d at 8 (citation omitted). However, the prosecutor’s references to Mayo’s pre-Miranda silence in her opening statement and examination of the State’s witnesses, prior to Mayo’s testimony, were a violation of Mayo’s constitutional right to remain silent.

State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis

Issue/Holding: Custody, for purposes of Miranda, requires that the suspect’s freedom be restricted to a degree associated with formal arrest, and is as gauged by a multi-factor test articulated in State v. Zan Morgan, 2002 WI App 124, ¶¶13-14. None of those factors are present in this instance, where the suspect was never told he was under arrest and was questioned in a police lobby open to the public, while waiting for an ambulance (because he had taken a number of pills; but was never told he had to wait for the ambulance), ¶¶19-20.

¶21      Torkelson lists several factors he contends show he was in fact in custody. He first argues his decision to come to the police station in the first place was not voluntary because he came in response to an “ultimatum” from his wife Carrie. However, the fact that a decision was made while facing personal pressure, such as pressure from a family member, does not mean the decision was involuntary. Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974). Nothing in Carrie’s demand would lead a reasonable person in Torkelson’s position to believe he was in the custody of the State while at the police station. ^[5]

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[5] Torkelson relies on Yarborough v. Alvarado, 541 U.S. 652 (2004). However,Yarborough involved a minor brought to the police station by his parents. Id. at 656. This made “the extent of [the minor’s] control over his presence unclear.” Id. at 665. Torkelson argues a marriage is similar because “one ignores the ultimatums of one’s wife at one’s peril.” However, a parent-child relationship is hierarchical, while a marriage involves two adults with equal authority relative to one another. Torkelson’s attempt to analogize Carrie’s “ultimatum” to demands by police is also unavailing, for the same reason.