June 11, 2025 – No specific burden of proof applies when a circuit court decides whether termination of parental rights (TPR) is in the best interest of the child, the Wisconsin Supreme Court decided recently in State v. H.C., 2025 WI 20.

In unanimously affirming the TPR against H.C., the majority opinion written by Justice Rebecca Grassl Bradley explained, “we hold the best interests of the child governing the dispositional phase of a TPR proceeding constitutes a discretionary determination by the circuit court and the statute places no burden of proof on a particular party.”

A concurrence written by Chief Justice Ann Walsh Bradley, joined by Justice Rebecca Frank Dallet, noted that “[t]he question of the proper burden of proof (if any) at the dispositional phase of a TPR proceeding has been percolating in this court and the court of appeals for several years.”

“The majority is half right,” the concurrence said. Although the court acts within its discretion in disposition, the petitioner should bear the burden by the preponderance of the evidence.

Without a specified burden of proof in determining the best interests of the child, the concurrence warned, the majority “makes Wisconsin a national outlier.”

Termination of Parental Rights

The mother and the child both have significant challenges. When her son was an infant, H.C. lived in a group home because she was “an at risk youth subject to a child in need of protection or services (CHIPS) order.” She “suffered numerous mental health disorders” and “battled drug addiction.”

H.C. failed to address her son’s many “medical, developmental, behavioral, and emotional needs.” She didn’t seek the specialized care that her son needed – and physically abused and neglected him.

The Division of Milwaukee Child Protective Services tried to help H.C. adequately care for her son but failed. The circuit court ordered the child be taken into custody at the age of two and found him in need of protection or services.

The CHIPS dispositional order for the son required H.C. to address her addiction and mental health issues before she could regain custody. That didn’t happen.

H.C. continued to live in a group home, “and showed no understanding of or ability to care for [her son’s] complex needs” when the State petitioned to terminate H.C.’s parental rights when the son was four years old.

She pled no contest to the allegations. The circuit court subsequently found at the fact-finding hearing that clear and convincing evidence showed H.C. was an unfit parent.

Based on testimony at the dispositional hearing, the circuit court weighed the best interest of the child factors to determine TPR was “unquestionably” in the child’s best interests.

Regardless of burden, whether clear and convincing or preponderance of the evidence, the circuit court said, “the State has certainly met those two burdens here, and gone beyond them, certainly. It’s really an overwhelming situation.”

The court of appeals affirmed the termination but added that “each party bears the burden to show by a preponderance of the evidence that its desired outcome … is in the best interests of the child.”

TPR Process

The majority began its analysis by explaining the TPR process. A TPR petition must be personally served on the parent and a hearing held within 30 days.

“At the hearing, the court informs the parties of their rights.” Even if the parent doesn’t contest the petition, the court is required to hear evidence and determine whether the parent admitted the facts voluntarily and understands its effect.

A parent who contests the petition gets a fact-finding hearing, commonly known as a “grounds” hearing, and a party may ask for a jury trial. The burden at this phase requires the State to prove the parent unfit with clear and convincing evidence.

If the court finds the parent unfit, a dispositional hearing follows where “the court considers whether terminating parental rights is in the ‘best interest of the child’” using the factors in Wis. Stat. section 48.426.

At the dispositional hearing, “[a]ny party may present relevant evidence” – and the child’s foster parent or another physical custodian must have “a right to be heard.”

After these procedural requirements are met, the court decides whether TPR is in the best interest of the child.

‘Not a Fixed Legal Rule’

“Due process is not a fixed legal rule,” the majority explained, but the “particular situation” and the type of government and private interests affected by the proceeding determine the range of “procedural protections.”

The majority explained that the TPR process incorporates due process in the fact-finding hearing, where the State bears “the burden to prove a parent unfit by clear and convincing evidence.”

“The very nature of the dispositional hearing does not lend itself to standards of proof, which exist in the realm of factfinding.” After the circuit court finds a parent unfit, the majority explained, “the best interests of the child prevail.”

In this bifurcated proceeding, “the dispositional decision is akin to the discretionary standard for criminal sentencing,” resulting from the trial in which the State had to meet a heightened burden of proof, the majority explained.

To require a specific standard of proof, the majority said, “would effectively force a circuit court to disregard the child’s best interests if the State did not meet a certain standard or proof.”

This doesn’t mean the dispositional phase lacks due process and the circuit court is free to do what it wants, the majority clarified.

“To the contrary, a discretionary standard allows the court to weigh all relevant evidence to determine a child’s best interests without regard for which party bore a burden to produce it.”

Nothing in the statutes requires additional due process, the U.S. Supreme Court has not demanded more, and H.C.’s public policy argument fails because the Legislature has spoken in the statutes, the majority explained.

Because of these requirements, the majority said, the circuit court applied the correct standard – and the court of appeals didn’t.

‘Cannot Exist in a Vacuum’

“A determination of the best interests of the child cannot exist in a vacuum, devoid of any analysis determining which evidence is more persuasive,” Chief Justice A.W. Bradley’s concurrence explained.

“Instead, it rests on the circuit court assessing credibility, weighing the evidence, and arriving at a determination that is supported by the greater weight of the credible evidence, also known as the preponderance of the evidence.”

The court at disposition has a binary choice: does the evidence support TPR or not? In contrast, at a criminal sentencing, the court has a range of options, the concurrence distinguished.

An established burden of proof won’t eliminate the circuit court’s discretion, the concurrence explained, but signal “what level of confidence it must have before exercising its discretion.”

A preponderance standard borne by the petitioner supports “the ‘purposes and policies’ of the TPR statutes,” the concurrence said, which retains as a “paramount goal” “preserv[ing] the unity of the family.”

The absence of a statutory evidentiary burden also is not unusual. It’s the court’s job to make that determination, the concurrence explained.

Twelve states require a burden of proof at disposition, five requiring preponderance of the evidence – and seven demanding a higher standard of clear and convincing evidence, the concurrence tallied.

“By stating that there is no burden at all at the dispositional phase, the majority places Wisconsin in the distinct minority of states that have addressed the question.”