Over its last several sessions, the Wisconsin Supreme Court has attempted to determine that burden of proof required during the dispositional phase of a termination of parental rights case.

The Court first addressed this issue in June 2023 in its decision in State v. A.G.¹ In a December 2023 article in this blog, my co-author Courtney L.A. Roelandts and I provided a detailed analysis of this case, which dealt with the issue of the burden of proof during a dispositional hearing in the context of a plea withdrawal.

In A.G., the Court held that Wis. Stat. section 48.426(2) does not place a burden of proof on the petitioner. The concurrence upheld the plea and ultimate termination of parental rights, but was silent on whether there was a burden of proof on the petitioner. Finally, the dissent held that was a “debatable conclusion” that there is no burden of proof at the dispositional hearing.

In June 2024, the Court again explored the issue in State v. B.W.² Like A.G., B.W. was not a direct attack on the constitutionality of the dispositional statute, but rather an argument that B.W.’s plea was not valid because he had been told incorrectly what the burden of proof was at disposition during his plea. In B.W., all seven justices agreed that the plea was valid and upheld the termination of parental rights for various reasons.

However, the Court specifically noted that it declined “to address the burden of proof issue in the majority opinion.” Rather, the majority opinion held that because the circuit court had not conveyed any burden of proof for the dispositional hearing to B.W. during the plea, there was simply no defect in the plea.

State v. H.C.

In the current session, the Court again accepted a case that addresses the burden of proof at the dispositional hearing in a termination of parental rights case: State v. H.C.³ H.C. is a direct attack on the constitutionality of Wis. Stat. section 48.426(2), unlike A.G. and B.W. In September 2024, the Supreme Court accepted H.C.’s petition for review on the following questions:

• Is the statutory scheme controlling the disposition phase in a termination of parental rights proceeding unconstitutional on its face because it violates procedural due process by not requiring the petitioner to prove that termination is in the best interest of the child by a certain level of proof?

• If the statutory scheme controlling the disposition phase in a termination of parental rights proceeding is unconstitutional because it does not require the petitioner to prove that termination is in the best interest of the child by a certain level of proof, is a parent whose rights were terminated under the unconstitutional statute entitled to a new disposition hearing?

The Court also requested that the parties address an additional question:

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?

Thus, the issues now before the Court are the following:

• Is there a burden of proof?

• If there is a burden of proof, what is that burden of proof?

• If there is a burden of proof, who holds that burden of proof?

• If there is a burden of proof, is that burden constitutionally required or statutorily required?

In H.C., the court of appeals, in upholding the termination of parental rights order, held that there was a burden of proof at the dispositional hearing and the burden was preponderance of the evidence.⁴ However, in its decision, the appeals court further stated that:

In reaching our conclusion, we note that this burden is not solely placed on the State. Rather, to account for the ability of all parties to present evidence and arguments at the disposition, we consider it a common burden of proof wherein each party bears the burden to show by a preponderance of the evidence that its desired outcome – be it termination or preservation of parental rights – is in the best interest of the child.”⁵

Further, in upholding the termination order, the court of appeals noted that the trial court had found termination was in the best interests of the child by both a “preponderance or even clear and convincing evidence, the State has certainly met those two burdens here, and gone beyond them, certainly. It’s really an overwhelming situation.”⁶

Those practitioners who handle termination of parental rights cases should be watching carefully for this Supreme Court decision this session, as this opinion will have a significant impact on these cases going forward.

Endnotes

¹ State v. A.G., 2023 WI 61.

2 State v. B.W., 2024 WI 28.

3 State v. H.C., 2023 AP 1950.

4 H.C. at 34.

5 H.C. at 35.

6 H.C. at 40.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.