Introduction​

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       The right of a parent to control the care, custody, and management of their child without State interference has deep roots in American history and jurisprudence. Although parental rights are not enumerated in the Constitution, the judicial system has long recognized parental rights as a fundamental liberty interest, and they are reflected in both state and federal legislation. Still, it is commonly recognized that sometimes the State must intervene in family life to protect a child’s welfare. The most severe of these interventions is the Termination of Parental Rights (TPR), a legal procedure that completely and permanently severs any legal relationship between a parent and child. While TPR cases are a civil matter, the procedure for this type of case strongly mirrors criminal procedure. The potential loss faced by the parents who may lose custody of their children in TPR cases also elevates the impact of this case to match that of a serious criminal matter. In fact, the gravity and finality of terminating an individual’s legal relationship with their child has earned the TPR cases the moniker of the “civil death penalty.” There are many procedural safeguards in place to protect the Due Process rights of parents facing TPR, especially those who may be prejudiced by their indigency or cultural differences from the legal institutions that oversee these proceedings. However, these parents continue to find themselves in one of the most difficult positions in the American legal system. This article provides an overview of the procedural safeguards currently afforded to parents facing TPR and argues that TPR cases continue to place parents at an unfair disadvantage when fighting to retain their relationship with their children. 

 

TPR Procedure

       A TPR case begins when the petitioner, who is typically an attorney representing their county’s Department of Human Services, files a Petition for Termination of Parental Rights. This form begins with some basic information related to the petitioner, one or both parents (the case’s respondent or respondents), and the child whom the petition is interested in. The petitioner must also indicate on this form whether each identified respondent will consent to the termination of their parental rights. This leads to the first major split in TPR proceedings, as the procedure for a case varies greatly depending on whether the petitioner seeks to terminate the respondents’ parental rights voluntarily or involuntarily.

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Voluntary TPR

         In a voluntary TPR case, the respondent does not contest the termination of their legal relationship with their child. Respondents may make this decision for any number of reasons, but it is often because they believe they do not have a chance to disprove the grounds for termination. These cases are relatively simple, as the court is only concerned with determining whether the parent has made this decision knowingly, voluntarily, and in the best interests of the child. In order to ensure that these requirements are met, the circuit court has a duty to inform the respondent of their rights in a TPR proceeding. These rights include the right to representation, the right to request a continuance, the right to request a jury trial, and the right to request a substitution of judge. If the parent does not seek to contest the termination of their parental rights after being informed of these rights, and the circuit court judge determines that termination is in the best interests of the child, then the circuit court terminates the parent’s parental rights immediately.

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Involuntary TPR

         In an involuntary TPR case, the respondent fights to maintain their legal relationship with their child. These cases follow a more complicated procedure, as respondents and their legal counsel must be afforded the right to challenge the petitioner’s alleged grounds for termination and to argue that terminating the respondent’s parental rights would not be in their child’s best interest. To facilitate this, courts employ a two-phase procedure, with each phase applying different standards and yielding different outcomes. First, there is the “grounds phase,” in which the petitioner seeks to prove the allegations that serve as the legal grounds for the TPR case. If the petitioner successfully proves that a valid legal basis for TPR exists, then the court moves to the “dispositional phase,” in which the outcome of the case is decided by the circuit court.

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       The grounds phase of an involuntary TPR case is very analogous to a criminal trial. At this stage, the petitioner’s role is similar to that of a criminal prosecutor, as they have the burden of proving the allegations they brought forth to initiate the TPR proceedings. In Wisconsin, petitioners can bring forth the allegations defined in Wisconsin Statute § 48.415, which enumerates grounds for TPR in the following subsections:

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(1) Abandonment
(1m) Relinquishment
(2) Continuing Need of Protection or Services
(3) Continuing Parental Disability
(4) Continuing Denial of Periods of Physical Placement or Visitation
(5) Child Abuse
(6) Failure to Assume Parental Responsibility
(7) Incestuous Parenthood
(8) Homicide or Solicitation to Commit Homicide of Parent
(9) Parenthood as a Result of Sexual Assault
(9m) Commission of a Felony Against a Child
(10) Prior Involuntary Termination of Parental Rights to Another Child [1]

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Much like criminal offenses, some of these statutorily defined grounds have overlapping elements, and the petitioner has some discretion to decide which should serve as the basis for the TPR petition. However, the outcome of the grounds phase does not change if only one of the grounds for TPR is proven, unlike criminal proceedings, in which failure to prove one charge typically leads to a lower sentence. The petitioner’s burden of proof for these grounds is also far less than the familiar reasonable doubt standard employed in criminal cases. Wisconsin employs the findings of Santosky v. Kramer, 455 U.S. 745 (1982), in which the Supreme Court of the United States held that the standard of “clear and convincing evidence” is adequate to protect the Due Process rights of the parent in an involuntary TPR case. Santosky v. Kramer increased the petitioner’s burden from the previously used “preponderance of the evidence” standard, which was held to be an inadequate Due Process protection in such a serious case. While this ruling held that the “clear and convincing evidence standard” was the minimum standard necessary to protect these parents’ Due Process rights, it did not prevent states from employing a higher standard. However, every state in the United States continues to apply this minimum standard in the vast majority of TPR cases, only employing a higher standard in very specific circumstances. This means that in some ways, parents who contest the grounds for termination of their relationship with their child face a more difficult situation than criminal defendants, as the state must meet a lower burden and only needs to prove one of potentially many allegations to succeed.

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         If the factfinder, which is typically but not always the presiding circuit court judge, determines that grounds for TPR are proven by clear and convincing evidence. Then, the court proceeds to the dispositional phase. At this stage, the parent’s interest in maintaining their legal relationship with their child is superseded by the best interests of the child, the “polestar” of the dispositional phase [2]. Even if a factfinder other than the circuit court judge is tasked with deciding whether grounds for termination have been sufficiently proven, that alternative factfinder does not get to make the final decision to terminate or maintain an individual’s parental rights. In all TPR cases, circuit court judges are tasked with determining the final outcome of a case after grounds have been proven. While circuit court judges have the sole authority to determine the disposition of a TPR case, state law provides extensive guidelines regarding the factors that must be considered in deciding a disposition. Wisconsin Statute §48.426 lays out six factors that judges must consider in deciding the final outcome of a TPR case. These factors are:

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(1) The likelihood of the child’s adoption after termination.
(2) The age and health of the child, both at the time of the disposition and, if applicable, at the time the child was removed from the home.
(3) Whether the child has substantial relationships with the parent or other family members, and whether it would be harmful to the child to sever these relationships.
(4) The wishes of the child.
(5) The duration of the separation of the parent from the child.
(6) Whether the child will be able to enter into a more stable and permanent family relationship as a result of the termination, taking into account the conditions of the child’s current placement, the likelihood of future placements, and the results of prior placements [3].

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Notably, circuit courts are not instructed to only consider the factors enumerated above, but these factors are so important that failure to consider each on the record has been deemed grounds for appeal [4]. So, while circuit court justices carry the sole authority to determine the outcome of the dispositional phase, their reasoning is carefully guided by statute to ensure that they employ sound and fair reasoning to determine the disposition that serves the best interests of the child.

 

[1] Wisc. Stat. § 48.415 (2023). https://docs.legis.wisconsin.gov/statutes/statutes/48/VIII/415

[2] Sheboygan County Dep’t of Health & Human Servs v. Julie A.B., 2002 WI 95, ¶ 37, 255 Wis. 2d 170

[3] Wisc. Stat. §48.426 (2023). https://docs.legis.wisconsin.gov/statutes/statutes/48/viii/426

[4] State v. Margaret H., 2000 WI 42, ¶¶ 32–36, 234 Wis. 2d 606

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Wisconsin’s Unique Due Process Protection – Jury Trials in TPR

       Wisconsin does not provide additional protection for parents facing TPR by using a burden greater than the constitutional minimum, nor does it employ especially narrowly defined grounds for TPR. However, Wisconsin does offer one unusual protection for TPR respondents in the grounds phase. TPR cases are recognized as having very serious implications, but their standing as a civil matter means that parents fighting TPR are not protected by the Sixth Amendment right to a jury trial. The vast majority of US states use this fact to limit TPR cases to bench trials at the grounds phase, meaning the presiding circuit county judge is the only potential factfinder for the allegations that serve as the basis for a TPR. Conversely, Wisconsin state law grants parents facing TPR the right to request a jury trial in the grounds phase, making Wisconsin one of only five states that grant this Due Process protection [5]. This deviation from the procedure employed by other states gives TPR respondents and their legal counsel a greater degree of agency in their fight to retain a legal relationship with their child, as they can choose whether a jury or bench trial best serves their goals. Affording the respondent and their legal counsel the option to choose a jury as the factfinder protects the respondent's Due Process rights in a matter similar to the right to a jury trial in criminal matters, as a jury may be a less biased or more sympathetic factfinder. However, it should be noted that this additional protection recently found itself under threat in the state legislature. Wisconsin Assembly Bill 628, which was introduced in 2021 by a coalition of Republican representatives from across Wisconsin and one Democratic representative from Onalaska, sought to repeal the statutory right to a jury trial in TPR cases [6]. This bill ultimately failed to pass, but it represents clear efforts by some members of our state legislature to do away with these Due Process protections for TPR respondents for the sake of judicial efficiency.

 

[5] Mary Sowinski & Thomas D. Wiensch, Contrary to the Child’s Best Interest: Jury Trials in Children’s Court Proceedings, 86 Wis. Lawyer (2013), https://www.wisbar.org/NewsPublications/WisconsinLawyer/pages/article.aspx?Volume=86&Issue=3&ArticleID=10693#28

[6] Wis. Assemb. B. 628, Sess. 2021-2022. https://docs.legis.wisconsin.gov/2021/proposals/reg/asm/bill/ab628

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Protections for Native American Parents – ICWA & WICWA

       There is one notable exception to the use of the “clear and convincing evidence” standard in TPR actions, both in Wisconsin and federally. In cases where the federal Indian Child Welfare Act (ICWA) and the Wisconsin Indian Child Welfare Act (WICWA) apply, petitioners are required to prove the grounds for TPR beyond a reasonable doubt, much like in a criminal proceeding. The aforementioned statutes apply when the TPR action is in the interest of an “Indian child:” an unmarried person under eighteen who is either a member of a federally recognized Indian tribe or the child of a tribe member who is themselves eligible for membership. Both ICWA and WICWA, passed in 1978 and 2009, respectively, were written with the recognition that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions [7].” In fact, research from the period when ICWA was passed revealed that 25-35% of all Native American children in the US had been placed with adoptive families, in foster homes, or similar institutions, and that 90% of these children were not being raised by Native Americans [8].

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       Considering the ugly history that led to ICWA’s and WICWA’s creation, it is unsurprising that legislators instructed courts to err on the side of caution in cases where Native American children may be removed from their families. However, this particularized exercise of caution brings into question the sufficiency of the clear and convincing evidence standard used in TPR cases where ICWA and WICWA do not apply. It is true that removing Native American children from their families and placing them in non-Native American households has and continues to damage Native American culture. However, all TPR respondents face tremendous potential loss in these proceedings, which is not reflected by the use of an intermediate burden of proof in the vast majority of TPR cases. Furthermore, ICWA’s limited application of the “beyond a reasonable doubt” standard ignores other persistent racial disparities in the impact of TPR cases. As recently as 2016, studies have shown that 1.7% percent of African-American children have had their legal relationship to both parents ended by TPR, as opposed to 1% of White children [9]. While both of these figures are well below the 2.7% reported for Native American children, they show that the African-American community is also disproportionately affected by TPR. Yet, African American parents are afforded no additional protection to remedy the factors that lead to outsized state intervention into family life. There currently is no proposition in state or federal legislature that seeks to raise the evidentiary burden in general TPR cases, so the parents of non-Indian children are left to face the possible loss of their children in spite of possible cultural prejudices and even when the allegations against them are laden with reasonable doubt.

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[7] 25 USC § 1903(4)

[8] Christie Renick, The Nation’s First Family Separation Policy, The Imprint (2018),
https://imprintnews.org/featured/nations-first-family-separation-policy-indian-child-welfare-act/32431

[9] Christopher Wildeman et. al., The Cumulative Prevalence of Termination of Parental Rights for U.S. Children, 2000–2016, 25 Child Maltreatment 1 (2019), https://pmc.ncbi.nlm.nih.gov/articles/PMC6868298/

 

Protection for Indigent Parents – Right to Counsel

         Another area in which TPR respondents are afforded greater Due Process protection than in typical civil cases is the right to counsel, which protects indigent parents from facing TPR proceedings without legal representation. Despite the recognition that abrogating a parent’s legal relationship with their child is an incredibly serious matter, the Supreme Court of the United States held in Lassiter v. Department of Social Svcs., 452 U.S. 18 (1981) that indigent parents are not entitled to court-appointed legal counsel in TPR cases. While the Supreme Court refused to recognize a right to counsel in TPR cases, every state in the US has ensured this right through legislation. Statutes that require the appointment of counsel for indigent parents are a vital Due Process protection in TPR cases, which disproportionately affect lower-income parents who could not otherwise afford legal representation. In Wisconsin, Wisconsin Statute § 48.23(2) explicates that any indigent parent who contests the termination of their parental rights is referred to the Office of the State Public Defender for legal representation [10]. From the side of the Office of the State Public Defender, this right is guaranteed by Wis. Stat. § 977.05(4)(j), which requires them to pursue any TPR case in which the court determines the parent to be indigent [11]. These statutes, and their analogues in other states, build upon the pattern of legal entities recognizing that TPRs hold a unique position among civil matters. However, these statutes will remain the only protection for TPR respondents’ right to counsel as long as the Lassiter decision is not overruled, which places this right in a much less secure position than the rights of criminal defendants, which have been affirmed through a mixture of statutory law, case law, and landmark judgments.

 

[10] Wisc. Stat. §48.23(2) (2023). https://docs.legis.wisconsin.gov/2023/statutes/statutes/48/iv/23/2

[11] Wisc. Stat. § 977.05(4)(j) (2023). https://docs.legis.wisconsin.gov/2023/statutes/statutes/977/05

 

Conclusions

         Any attempt to reform TPR proceedings requires careful balancing of interests, as both the welfare of a child and the fundamental rights of a parent lie at stake. It is a grave mistake to terminate a parent’s legal relationship with their child without valid grounds, but it is equally egregious to allow children to remain in a home where they face neglect or abuse. Raising the standard of proof in all TPR cases to match the reasonable doubt standard used in TPR cases where ICWA applies would certainly limit the amount of wrongful TPRs, but it would also create new difficulties for the agencies that seek to protect children by removing them from neglectful and abusive homes. However, it should be considered that parents facing TPR – which can result in a permanent and egregious loss – are judged against a lesser standard than even the least serious of criminal matters. Regardless of whether new protections for TPR respondents are introduced, the Due Process protections that currently exist continue to find themselves under threat, as their legal basis is far less robust than that of criminal Due Process rights. For example, the now-defeated proposition to eliminate jury trials in Wisconsin’s TPR cases would have removed another layer of protection for parents facing TPR, simply for the chance to improve judicial efficiency in handling these cases. There is currently no guarantee that the right to counsel in TPR cases, which is similarly predicated only upon state statutes, will not someday find itself under threat for the same reason. Ultimately, reforming TPR procedure in Wisconsin and across the United States will require legislators, court officials, and the American public to weigh the importance of parents’ rights to control their children’s upbringing against the power afforded to agencies that intervene in family life when children do need assistance and protection.