In Re the Termination of Parental Rights to Alexander v. a Person Under the Age of 18: Steven v…

Summary

The Wisconsin Supreme Court held that partial summary judgment is available in the unfitness (grounds) phase of a termination of parental rights (TPR) proceeding where the moving party shows no genuine issue of material fact on the statutory grounds and, under the heightened clear-and-convincing burden, is entitled to judgment as a matter of law; the TPR jury trial right is statutory only, not constitutionally mandated, and due process requires only a hearing and clear-and-convincing proof, both of which summary judgment accommodates. The court also held that Wis. Stat. § 48.422(1) does not require the circuit court to advise a nonpetitioning party of the statutory right to a continuance to consult counsel about judicial substitution. It affirmed the court of appeals' affirmance of the termination of Kelley H.'s parental rights, but on different reasoning, overruling and withdrawing contrary precedent along the way. Chief Justice Abrahamson, joined by Justice Ann Walsh Bradley, concurred to urge legislative revision of the TPR scheme, and Justice Prosser dissented, contending the majority stripped parents of a legislatively conferred jury trial right.