Terese J. Singer

Wisconsin Court Holds Statements of Foster Parents Can Be Considered in Termination Proceedings

Courts considering the termination of parental rights often focus extensively on how termination will affect the child’s relationship with his or her parents and other relationships as well, such as connections with grandparents. Courts are always reluctant to cut off a child’s access to family members, even if those family members historically have not taken good care of the child. In considering the future of a child’s relationships, courts may sometimes seek information from foster parents or potential adoptive parents as to whether they are willing to continue to allow the child to have a relationship with his or her family members. In a recent Wisconsin child custody case before the Wisconsin Court of Appeals, the court looked at whether it is fair to consider these types of statements in termination proceedings.

In In Re N.L.P. and M.P.P., the Wisconsin Court of Appeals considered the termination of M.P.’s parental rights for failing to follow through on requirements that he maintain a closer relationship with his twin daughters, N.L.P. and M.P.P. The two girls were removed from the custody of their mother after they were discovered to have recently healed fractures that were not consistent with a fall. At the time, their mother had previously been reported for child welfare issues and was alleged to have left her children (ranging from seven years in age to infants) alone for extended periods of time. At the time, M.P. was living close to N.L.P. and M.P.P., but he had limited contact with them. He was also taking care of two other children at the time and was found to have difficulty supporting them alone. Accordingly, N.L.P. and M.P.P. were placed in foster care. A CHIPS order was implemented, and certain conditions were placed on M.P. before the girls could be returned home. These requirements included supervised visitation, parenting education, and therapy.

After several months, it was reported that M.P. was failing to meet the requirements imposed. He was inconsistent in his visits with his daughters, missed important educational and medical appointments, and did not always attend therapy. Caregivers also noticed that after unsupervised visits with his daughters, they would develop certain fears or tics, such as a stutter, that made them concerned about M.P.’s interactions with the girls. Accordingly, a year and a half later, a Petition for Termination of Parental Rights was filed against M.P. M.P. opted for a court trial, which took four days and included extensive evidence about M.P.’s actions and the girls’ situation. During the trial, the girls’ foster parents testified that they hoped that M.P. would continue a relationship with the girls even after the termination of parental rights, and they were open to accommodating that relationship. At the close of evidence, the trial court decided to terminate M.P.’s rights. M.P. appealed.

On appeal, M.P. argued that the trial court should not have considered the statements from the foster parents about continuing to involve him in N.L.P. and M.P.P.’s lives because such statements were unenforceable promises and had no real value to the court. M.P. argued that under Wisconsin law, the court was required to consider whether his daughters had substantial relationships with their parents and whether termination would hurt those relationships. Relying on the unenforceable statements of the foster parents allowed the court to unfairly avoid this issue.

The Wisconsin Court of Appeals turned to caselaw from the Wisconsin Supreme Court in upholding the trial court’s consideration of the foster parents’ statements. According to prior decisions of the Supreme Court, trial courts are not mandated to consider statements of foster parents when evaluating the impact of termination on a child’s relationship with his or her parents. However, courts may consider such statements under their broad discretionary authority if they believe them to be trustworthy and probative in evaluating how relationships may be maintained after the termination of parental rights. Given that trial courts have the discretionary authority to consider such statements, the Wisconsin Court of Appeals held that the trial court did not err in considering the statements of foster parents in M.P.’s case. Given this conclusion, the Court of Appeals affirmed the lower court’s decision to terminate M.P.’s parental rights.

This case makes clear that Wisconsin courts understand and acknowledge that promises by foster parents may be illusory and ultimately unenforceable. Accordingly, they cannot be used as absolute evidence of how a child’s relationship with his or her parents will fare after termination. However, courts may consider such statements and weigh them against other evidence in making a discretionary decision about what is in a child’s best interest. If you are facing the possibility of termination proceedings and are concerned how statements by foster parents or adoptive parents may be used against you, the experienced Milwaukee child custody lawyers at Reddin & Singer, LLP can work with you to minimize the negative impacts of such statements at trial. To find out more about how to protect your parental rights during termination proceedings, contact the law offices of Reddin & Singer, LLP online or give us a call at 414-271-6400.

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