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Home / Case Digests / 00-1739 In Re: the Termination of Parental Rights to Jayton S. v. Tykila S.

00-1739 In Re: the Termination of Parental Rights to Jayton S. v. Tykila S.

“Due to the severe nature of terminations of parental rights, termination proceedings require heightened legal safeguards against erroneous decisions. Although termination proceedings are civil proceedings, M.W. v. Monroe County Dep’t of Human Servs., 116 Wis.2d 432, 442, 342 N.W.2d 410 (1984), the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that ‘[i]n order for parental rights to be terminated, the petitioner must show by clear and convincing evidence that the termination is appropriate.’…

“The circuit court in the present case breached this principle. As Tykila acknowledges, her violation of the order for personal appearance supplied the circuit court with adequate cause to sanction her by means of a default judgment. However, this cause did not relieve the circuit court of its duty under the Fourteenth Amendment and Wis. Stat. Chapter 48 to take sufficient evidence – prior to finding Tykila to be an unfit parent – to support a finding by clear and convincing evidence that Tykila had abandoned Jayton. By entering a default judgment against Tykila on the issue of abandonment without first taking this constitutionally and statutorily required evidence, the circuit court erroneously exercised its discretion.”

However, the trial court properly found abandonment by the mother before terminating her parent rights.

“First, the record contained evidence that Tykila had left Jayton with Evelyn [the grandmother]: as Evelyn explained in her testimony, Jayton had lived with her since May 1992. Second, there was evidence that Tykila knew or could have discovered Jayton’s whereabouts: Evelyn testified that her telephone number and address had been listed in the telephone directory throughout all of the approximately five years preceding the commencement of this case. And third, the record contained evidence that Tykila had failed to visit or communicate with Jayton for far more than six months: Evelyn’s testimony revealed that Tykila had not contacted Jayton since December 1994; that is, at the time Evelyn filed her petition for the termination of Tykila’s parental rights to Jayton, Tykila had not contacted Jayton for about five years – approximately ten times the amount of time necessary under sec. 48.415(1)(a)3 to constitute abandonment. Although given the opportunity to do so, Tykila did not dispute any of these facts.”

Judgment affirmed.

CONCURRING OPINION: Abrahamson, Ch. J. “My hope is for increased discussion of the doctrine of harmless error and educational programs for the bench and the bar regarding the application of, and limitations of, the doctrine. Appellate counsel should continue to brief the issue of harmless error in requests for new trials.

“Although I join the majority opinion, for the reasons set forth, I write separately.”

CONCURRING OPINION: Crooks, J., with whom Wilcox, J., joins. “Even though the majority used a ‘reasonable possibility’ test, the error at issue here-that the circuit court erroneously exercised its discretion in entering a default judgment against Tykila S. – would be harmless under the more stringent ‘reasonable probability’ test. I joined the unanimous majority opinion in a similar case decided last term, Waukesha County v. Steven H., 2000 WI 28, 233 Wis.2d 344, 607 N.W.2d 607, wherein we concluded that the circuit court’s error there – its failure to hear testimony in support of the allegations in the petition to terminate parental rights – was harmless because it did not prejudice the parent, Steven H. Id. … I find no substantive distinction between Steven H. and the instant case.”Court of Appeals, Wilcox, J.

Attorneys:

For Appellant: Timothy A. Provis, Madison

For Respondent: Theresa L. Roetter, Madison


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