State v. H.C., 2023AP1950, petition for review of an unpublished court of appeals decision granted 9/11/24; case activity (including briefs)
In a seemingly inevitable grant given a flood of appeals raising an identical issue, SCOW has accepted review of this unpublished TPR decision, which held–for the first time in Wisconsin law–that the preponderance of the evidence standard applies at the dispositional phase of a TPR.
Readers of this blog should be well versed in this issue by now, so we won’t belabor the point: This is an important case, with the potential to work big changes in TPR procedure. Notably, SCOW has signalled in its order granting review that it is interested in conclusively resolving the burden of proof issue once and for all in this case, as it has asked the parties to address the following supplemental issue not presented in the petition for review:
Even if the court were to conclude that the constitution does not require it, is there nonetheless a burden of proof at the dispositional phase? And, if so, what is the burden of proof?
As we’ve summarized in our prior posts, this issue requires SCOW to resolve an apparent conflict between two strands of statutory interpretation. On the one hand, the lack of a standard within the dispositional statute could signal, as COA summarized in its recent K.R.K. decision, “that the only standard that applies at the dispositional phase of a TPR proceeding is the child’s best interests.” There is, however, another line of case law seemingly establishing that, when the statute is silent as to a burden of proof, the preponderance of the evidence standard applies. This case will give SCOW the opportunity to pick between these competing interpretations of our TPR dispositional statute and hopefully resolve the flood of litigation that has occurred in this practice area.
