E.S. v. K.R.K., 2024AP1174, District II, 8/28/24 (one-judge decision; ineligible for publication); case activity
In yet another chapter in the ongoing “burden of proof” saga in TPR world, COA swats away K.R.K.’s constitutional challenge while also holding that she is not entitled to a new dispositional hearing at which time an explicit burden of proof can be utilized.
By now, readers of this blog should be familiar with the outline of this ongoing legal saga spurred by several cases in SCOW as well as a recent unpublished case in COA. Readers interested in “catching up” may want to review our post on COA’s H.C. decision (rejecting a constitutional challenge and holding that the TPR dispositional statute embodies a preponderance of the evidence burden of proof), our lengthy post on the most recent decision from SCOW in B.W. (which did not address this constitutional issue but did address, at least in passing, the issue of a burden of proof at dispo), or, for those readers who don’t want to read our prose, there’s always the recent essay by Retired Judge Christopher Foley aptly summarizing the current state of the law. Here, COA takes on two of these issues and dispatches K.R.K.’s arguments with a minimum of fuss:
Constitutionality of TPR Dispo Statute
K.R.K., like H.C. before her, argues that § 48.426 “is facially unconstitutional because it does not impose a clear and convincing burden of proof standard at the dispositional phase of the termination of parental rights (TPR) proceedings.” (¶1). COA notes, however, that K.R.K. has a steep hill to climb as it her burden to prove that the statute is unconstitutional. (¶7). Moreover, COA, in addressing her challenge, reminds the reader that it “indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute’s constitutionality, we must resolve that doubt in favor of constitutionality.” (Id.).
K.R.K., also like H.C., relies on SCOTUS’s decision in Santosky v. Kramer to support her contention of unconstitutionality. (¶8). COA, however, holds that Santosky offers no help to K.R.K., as that case only holds that a clear and convincing standard must be applied to the grounds phase of a TPR proceeding. (¶9). Thus, COA holds that “[t]here is nothing in Santosky […] that leads this court to conclude that the clear and convincing burden of proof should be extended to the dispositional phase.” (¶10). Instead, COA reads Santosky as signalling “the opposite conclusion by acknowledging that after grounds have been proven by clear and convincing evidence and a parent is found unfit, the focus shifts to the child’s interests and a parent’s rights are not considered in determining the ultimate disposition.” (Id.). Because K.R.K.’s case is solely reliant on Santosky, COA’s holding that this authority is inapplicable dooms her appellate challenge. (Id.).
This analysis is followed by two lengthy footnotes. In the first, COA suggests that K.R.K.’s case may be further distinguishable because it is a privately-filed TPR that did not involve the State, thereby implying that the due process balancing inquiry may be different in such cases.
The second, nearly page-long footnote, contains a lengthy discussion of SCOW’s recent TPR precedents. Although neither A.G. nor B.W. generated citable precedent conclusively resolving the burden of proof issue, COA finds the writings of Justice R.G. Bradley (in A.G.) and Chief Justice Ziegler (in B.W.) “instructive as to whether the absence of a clear and convincing burden of proof renders § 48.426 unconstitutional […].”
Request for a New Dispo Hearing
In the alternative, K.R.K. argues she is entitled to a new dispositional hearing, at which time the circuit court can explicitly apply the preponderance of the evidence standard identified in H.C. (¶11). She claims that because the court did not apply any burden, she is at the very least entitled to a hearing at which time the court applies the low burden identified in H.C. (Id.). However, a review of the record shows that while the court did not “explicitly reference” the preponderance standard, the petitioner “proved by at least the preponderance of the evidence that it was in [the child’s] best interests to terminate K.R.K.’s parental rights.” (¶12). Moreover, the circuit court reference the existence of a “high burden,” suggesting “that at a minimum, the court applied the preponderance of the evidence standard–the lowest of the three evidentiary burdens–in analyzing [the childs’s] best interests under § 48.426. (Id.).
Thus, while COA does not explicitly align itself with the H.C. decision, it holds that any error was seemingly harmless given that K.R.K. already received what she asked for–application of the preponderance standard at her dispo hearing. COA then includes another lengthy footnote that is worthwhile reading for litigators pursuing challenges in this area. In Retired Judge Foley’s article in the Wisconsin Lawyer, he identified at least one precedent he believes to have been missing from this conversation–S.D.S. v. Rock County, which held that (as COA summarizes it here) “in civil matters, the ordinary burden of proof applies when the statute is silent as to a specific burden of proof.” Although COA did not cite S.D.S. in its H.C. decision, that precedent could be used to justify that holding, as Judge Foley argues in his article. However, COA notes that “It is unclear whether the statement in S.D.S. would control in a TPR dispositional proceeding” given the writings of Justice R.G. Bradley in A.G. and Chief Justice Ziegler in B.W., both of which it believes to be at least persuasive authority in analyzing this burden of proof issue. Because K.R.K. did not cite S.D.S., however, COA observes that resolution of this question will have to wait for another day.
Finally, COA also pauses to observe that the other holding of H.C.–that the burden applies to all parties–may be in question, as “There is no controlling precedent on this question.”
