TPR Case Analysis

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The two cases establish the following clear set of rules for trial courts in TPR cases to follow:

(1) If a statutory ground for unfitness can be established by documentary evidence, and no evidence in opposition is presented, partial summary judgment should be granted on the issue of unfitness.

(2) Explanations and excuses for the existence of a statutory ground for termination are not relevant evidence at this stage of the proceeding.

(3) But a party may mount an as applied constitutional challenge to application of a statutory ground for termination in the unfitness stage of the proceeding.

How these rules will actually play out in lower courts, however, is not so clear. In a footnote to its decision in Kelli B., the majority responded to Justice Prosser’s concerns, stating, “Because we determine as a matter of law that Kelli was a victim, we need not address how the issue of non-consent should be raised and decided in future cases.”

However, because the court found non-consent as a matter of law, it necessarily follows that, in some instances, the issue can be decided by the court, without the jury. Furthermore, if the mother is under the age of 16, she cannot consent as a matter of law, and thus, the issue must be decided by the court, in favor of the mother.

If consent is a disputed matter, it could be a jury question, but that could be problematic.

Normally, the only issue for the jury would be whether the child is the product of incestuous parenthood. Instead, the jury would have to determine whether the parent is guilty of the crime of incest, which requires that the mother acted knowingly.

Effectively, however, this contradicts the holding in Steven V. that explanations are irrelevant in deciding whether a condition for unfitness was met. The court also does not state which party would have the burden of proof, and what that burden would be.

Another question, which the court does not mention, is what happens if a parent’s unfitness is the result of a crime other than incest.

Suppose a parent is a victim of a violent crime, resulting in unfitness due to “continuing parental disability,” pursuant to sec. 48.415(3).

In such a case, the county must prove three elements: in two of the last five years, the parent was in a treatment facility; the parent’s condition is likely to continue indefinitely; and the child is not being provided with adequate care by a relative.

Pursuant to the decision in Steven B., the parent would be barred from arguing that the explanation for her unfitness is that she is a crime victim. However, she could mount an as-applied constitutional challenge, citing the decision in Kelli B.

However, the majority’s decision may not permit a distinction between whether the parent’s inability to care for her children, because of a violent crime against her, is permanent or temporary.

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Taking Kelli B. to its logical conclusion, the court may be required to dismiss the TPR petition, even if the disability is permanent. The county could attempt to distinguish such a case on the ground that, in Kelli B., the parent’s status as an incest victim led directly to the grounds for unfitness, while the violent crime would only be an indirect cause of unfitness in this hypothetical.

However, if it violates a parent’s rights to terminate because she was a victim of incest, it should be just as much a violation where the parent is a victim of a violent crime.

However, if the disability is permanent, it may be a far better result to terminate parental rights, and place the children for adoption, rather than keep them in permanent foster care for the duration of their childhoods.

Under the majority’s holding, however, the court would have to find the state’s interests compelling enough to outweigh the parent’s due process rights before even considering the best interests of the children.

– David Ziemer

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David Ziemer can be reached by email.