Family Law Prof Blog

Editor: Margaret Ryznare
Indiana University
Robert H. McKinney School of Law

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Friday, July 28, 2006

Case Law Development: Incarceration Insufficient Basis for Termination of Parental Rights

The Wisconsin Supreme Court reversed a trial court court's termination of a mother's parental rights holding that the trial court had acted "solely due to Mother's status as an incarcerated person without regard for her actual parenting activities or the condition of her son in violation of Wis. Stat. ยง 48.415(2) and the mother's substantive due process rights."  The 4-2 decision turned on the fact that Mother had been told that a condition of getting her son back would be to find safe and suitable housing within 12 months, which would have been impossible since she was still incarcerated during that time.  The court ruled that conditions of return must be tailored to each individual case and that the nature of the parent's conviction and length of sentence can and should be among the considerations for parental unfitness, but not the only factor. Other factors cited include the likelihood that the child will be adopted, the child's age and health, the relationship between the parent and the child, the parent's level of cooperation, and the best interests of the child.

Dep't of Human Serv. v. Jodie W. (In re Max G. W.), 2006 WI 93 (July 11, 2006)
Opinion on the web (last visited July 27, 2006) bgf
Read news reports on the story in the Milwaukee Journal-Sentinal.

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