After the court grants a termination of parental rights (TPR), children are at their most vulnerable legal juncture. At this step of the proceedings, children are legal orphans, waiting to be adopted or to find other permanency. So, imagine the devastation when a change of placement is filed and the child has no opportunity to do anything about it.
That is precisely what happens under current law. After a TPR is granted, children, their counsel, and their guardians ad litem have no recourse to request a change of placement or to object to a change of placement filed by the agency, State, or corporation counsel.[1]
Courtney L.A. Roelandts, Marquette 2018, is the assistant managing attorney of the Children’s Court Guardian ad Litem Division of the Legal Aid Society of Milwaukee, Inc., where she practices primarily in CHIPS, TPR, and minor guardianship cases and appeals.
In addition, the child is not even able to offer a statement through counsel or their guardian ad litem as to their best interests or stated wishes. Although the Court considers the child’s wishes at the disposition hearing in a TPR proceeding under Wis. Stat. section 48.426(3)(c), those expressed wishes are not heard by a court if there is a change of plans or circumstances after TPR is granted.
Contrary to the Best Interests of the Child
There are several scenarios where this becomes problematic.
For instance, a child may be in a firm adoptive placement at the time of the disposition hearing, but later the placement changes their mind. The agency has carte blanche authority to control the next move.
With teenagers, they may have a preferred or suggested placement that is contrary to the agency’s recommendation, but their counsel has no opportunity or legal standing to file a change of placement.
With children, perhaps a relative becomes available that the agency does not agree with, or the child wants to stay in a placement that the agency has deemed unfit for adoption, but guardianship is possible.
There are many reasons why a child might want to propose an alternative or object to a placement, and they should have the right to voice their wishes. Currently, they do not have a way to bring their wishes to the court’s attention regarding the change of placement request.
This procedural oversight is contrary to the best interests of the child and denies the child the opportunity to be heard. It is also inconsistent with the procedures followed in CHIPS when there is a request to change the placement of the child.[2]
A Proposal
To resolve this issue, the State Bar of Wisconsin Children and the Law Section Board is proposing an amendment to Wis. Stat. section 48.437 to give children, through counsel or their guardian ad litem, the right to propose a change of placement or to object to any placement changes proposed by the agency, State, or corporation counsel.
This proposal not only aligns the procedures for changing the child's placement before a petition to terminate parental rights with those after the termination, it also ensures consistency for the courts to hear the child's position throughout the permanency planning process, which serves the best interests of the child.
We Want to Know
Have you seen an instance where the current law prevented you from advocating for your client or ward when a change of placement is filed? The Board welcomes feedback on this proposed change in the law. You can reach us via our WisBar.org webpage (log in required).
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.
Endnotes
[1] Wis. Stat. § 48.437. ↩
[2] See Wis. Stat. §§ 48.217(1)c), 48.357(1)(am)2. ↩
