In re the Termination of Parental Rights to A. R. W., a person under the age of 18:
D. A. (L.C. # 2013TP370) State of Wisconsin
appeals from an order involuntarily terminating his parental
rights to his biological daughter, A.R.W. Appellate counsel
has filed a no-merit report pursuant to Wis.Stat. Rules
809.107(5m) and 809.32, Anders v. California, 386
U.S. 738 (1967), and Brown Cty. v. Edward C.T., 218
Wis.2d 160, 161, 579 N.W.2d 293 (Ct. App. 1998) (per curiam).
D.A. received a copy of the report, was advised of his right
to file a response, and has elected not to do
so.Upon consideration of the no-merit report
and an independent review of the record, we conclude that the
order may be summarily affirmed because there is no arguable
merit to any issue that could be raised on appeal.
See Wis. Stat. Rule 809.21.
gave birth to A.R.W. in 2003. D.A. was involved during the
first five months of the pregnancy but discontinued contact
after A.W. told him he was not the biological father. In
December 2005, A.R.W. was removed from her mother's home
and adjudicated a child in need of protection or services
(CHIPS). In 2006, pursuant to a court ordered paternity test,
D.A. was adjudicated A.R.W.'s biological father. Around
this same time, D.A. was arrested and held in custody for
charges involving the sexual assault of a child. He was
convicted of child sexual assault by a jury and, in June
2006, received a bifurcated sentence including ten years of
initial confinement. A.R.W. was returned to her mother's
care in February 2009.
December 2011, A.R.W. was again removed from A.W.'s care
and placed outside the home pursuant to a CHIPS dispositional
order entered May 15, 2012, and revised on April 11, 2013.
D.A. was involved in the CHIPS action and was given court
ordered conditions of return. On November 21, 2013, the State
filed a petition to involuntarily terminate both parents'
rights to A.R.W. As to D.A., the grounds alleged were
continuing CHIPS under Wis.Stat. § 48.415(2), and
failure to assume parental responsibility under §
48.415(6). D.A. chose to represent himself along with standby
counsel. The parents' cases were eventually severed and
following a multi-day court trial, D.A. was found unfit on
both grounds. After a dispositional hearing spanning several
days, the circuit court terminated D.A.'s parental
rights. This no-merit appeal follows.
no-merit report first addresses whether any issue of arguable
merit arises from D.A.'s decision to waive his right to a
jury trial. See Wis. Stat. § 48.422(4). The
right to a jury trial in a TPR case is statutory, not
constitutional. See Steven V. v. Kelly H., 2004 WI
47, ¶34, 271 Wis.2d 1, 678 N.W.2d 856. In accepting a
parent's withdrawal of his or her demand for a jury
trial, the circuit court is not required to engage in a
personal colloquy on the record. Racine Cty. Human Servs.
Dep't v. Latanya D.K., 2013 WI.App. 28, ¶21,
346 Wis.2d 75, 828 N.W.2d 251. Here, D.A. waived his right to
a jury trial on the record after informing the circuit court
he had considered the issue for several weeks and believed
the circuit court judge to be fair. We agree with appellate
counsel's analysis and conclusion that any challenge to
the withdrawal of D.A.'s jury trial demand would be
without arguable merit.
no-merit report also addresses the sufficiency of the
evidence supporting the circuit court's unfitness
findings. We agree that there is no arguably meritorious
challenge to the circuit court's unfitness finding on
either ground. In order to establish the continuing CHIPS
ground, the State needed to show by clear and convincing
evidence that (1) A.R.W. was adjudged in need of protection
or services and placed outside the home for six months or
more pursuant to a court order containing the TPR notice
required by law, (2) Milwaukee County made reasonable efforts
to provide the services ordered by the court, (3) D.A. failed
to meet the conditions established for the safe return of
A.R.W., and (4) there was a substantial likelihood that D.A.
would not meet the conditions within the next nine months.
See Wis. Stat. § 48.415(2); Wis JI-Children
trial evidence established that A.R.W. was placed outside the
home for well over six months and that the revised April 11,
2013 order contained the requisite TPR warnings as to D.A.
Over time, D.A. had three different case workers through
Milwaukee County. The circuit court determined that though
the case workers' efforts were at times thwarted by the
Department of Corrections, at least two of D.A's case
workers made reasonable efforts to provide court ordered
services to D.A. The circuit court also found that though
D.A. had made progress on some of his conditions of return,
he failed to meet certain critical conditions, such as
completing sex offender treatment. Finally, aside from his
other unfulfilled conditions, the circuit court found there
was a substantial likelihood that D.A. would not complete sex
offender treatment within the next nine months. The circuit
court's decision as factfinder is supported by a
reasonable view of the credible evidence. See State v.
Quinsanna D., 2002 WI.App. 318,
¶30, 259 Wis.2d 429, 655 N.W.2d 752.
we conclude that the circuit court acting reasonably could
have found by clear and convincing evidence that D.A. failed
to assume parental responsibility for A.R.W.. In order to
establish this ground, the State needed to show that D.A. did
not have a substantial parental relationship with A.R.W.,
meaning the acceptance and exercise of significant
responsibility for her daily supervision, education,
protection, and care. See Wis. Stat. §
48.415(6). D.A. had reason to believe he was A.R.W.'s
father but took no steps to establish paternity while he was
out of custody from 2003 to 2006. Once he was adjudicated,
D.A. had no contact with A.R.W. until she was removed from
her mother's care for the second time, in 2011. Though
the court agreed that thereafter, D.A. made a concerted
effort to be a part of A.R.W.'s life, the court found it
did not rise to the level of a substantial parental
relationship. The evidence was sufficient to support the
circuit court's finding.
the no-merit report addresses whether D.A.'s
court-ordered conditions of return were impossible to meet in
violation of D.A.'s substantive due process rights.
See Kenosha Cty. DHS v. Jodie W., 2006 WI 93,
¶¶19, 49, 293 Wis.2d 530, 716 N.W.2d 845 (a
parent's incarcerated status does not in itself
demonstrate unfitness, and "a parent's failure to
fulfill a condition of return due to his or her
incarceration, standing alone, is not a constitutional ground
for finding a parent unfit"). As discussed in
counsel's no-merit report, the circuit court found that
D.A. failed to meet several conditions of return and further
determined that D.A. could have met these conditions, such as
sex offender treatment, despite his incarceration. We are
satisfied that the no-merit report properly analyzes this
issue as without merit and will not address it further.
there is no arguable merit to a claim that the circuit court
erroneously exercised its discretion when it terminated
D.A.'s parental rights at disposition. The court
correctly applied the best interests of the child standard
and considered the factors set forth in Wis.Stat. §
48.426(3). The circuit court considered at some length
whether terminating D.A.'s parental rights would enable
A.R.W. to enter into a more stable and permanent family
relationship, observing it was difficult to predict both the
likelihood of A.R.W.'s adoption and whether D.A. would
eventually be able to serve as a placement resource.
Ultimately, the court found that termination would allow for
more predictability and afford A.R.W. a greater degree of
stability. The court's discretionary decision to
terminate D.A.'s parental rights demonstrates a rational
process that is justified by the record. See Gerald O. v.
Cindy R., 203 Wis.2d 148, 152, 551
N.W.2d 855 (Ct. App. 1996).
addition to the potential issues discussed by counsel, we
note that it appears from the record that all of the
statutory deadlines were met or properly extended for good
cause and that required notices were given. We have
discovered no other arguably meritorious grounds for an
appeal. Accordingly, we accept the no-merit report, affirm
the order terminating D.A.'s parental rights, and
discharge appellate counsel of the obligation to represent
D.A. further in this appeal.
the foregoing reasons, IT IS ORDERED that the order
terminating D.A.'s parental rights to A.R.W. is summarily
affirmed pursuant to Wis.Stat. Rule 809.21.
FURTHER ORDERED that Attorney Christine M. Quinn is relieved
from further representing D.A. in this ...