Petition for Writ of Certiorari — T. R. C., Petitioner v. Wisconsin

Supreme Court briefSep 30, 2019

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No. 19-_______

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In The

Supreme Court of the United States

-----------------------------------------------------------------T.R.C.,

Petitioner,

STATE OF WISCONSIN,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Wisconsin Court Of Appeals

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------ANDREW J. SHAW

Counsel of Record

MARION KOLLER SHAW

SHAW LAW OFFICES

6815 West Capitol Drive

Suite 115

Milwaukee, Wisconsin 53216

(414) 535-9626

shawlawofﬁces@gmail.com

Counsel for Petitioner

T.R.C.

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

1. Is Wis. Stat. §48.415 unconstitutional as applied when it was used to terminate the Fourteenth

Amendment fundamental right of familial integrity of

a mother due to “continuing need of protection or services” when the mother did not endanger the daughter?

2. Does the Fourteenth Amendment require

Wisconsin to protect a parent’s fundamental right of

familial integrity with strict scrutiny analysis and

least restrictive means throughout the termination of

parental rights (TPR) case until that right is terminated?

3. Did Wisconsin fail to protect a mother’s Fourteenth Amendment fundamental right of familial integrity when the trial court told the mother that a

dispositional hearing would be “a bit different” than a

termination of parental rights (TPR) trial and the trial

court would still consider “all of the evidence” if the

mother signed a no-contest plea?

4. Was the guardian ad litem compromised beyond repair, in his role as advocate for the minor child

involving her Fourteenth Amendment fundamental

right of familial integrity in a termination of parental

rights (TPR) case, when a search warrant was issued

to seize his computer for child pornography during a

“very close to reuniﬁcation case?”

PARTIES TO THE PROCEEDING

Petitioner T.R.C., who was respondent-appellant

below, is an African American citizen who is a resident

of the City of Milwaukee, Milwaukee County, Wisconsin, and is biological mother to daughter D.U.C.

Respondent is State of Wisconsin, who was petitionerrespondent below.

RELATED CASES

•

In re the Termination of Parental Rights to D.U.C.,

a Person Under the Age of 18, State of Wisconsin v.

T.R.C., Milwaukee County Case No.: 2016-TP-04.

Judgment entered October 17, 2017.

•

In re the Termination of Parental Rights to D.U.C.,

a Person Under the Age of 18, State of Wisconsin v.

T.R.C., State of Wisconsin Court of Appeals District I, No. 2018-AP-820 (Ct. App. 2019). Judgment

entered April 2, 2019.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

PARTIES TO THE PROCEEDING ......................

RELATED CASES ...............................................

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

OPINIONS BELOW.............................................

JURISDICTIONAL STATEMENT ......................

CONSTITUTIONAL AND STATUTORY PROVISIONS ...............................................................

INTRODUCTION ................................................

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE PETITION .... 17

Mom-T.R.C. Demonstrated That She Is A

Fit And Willing Parent .............................. 17

II.

Daughter-D.U.C. Was Not “Sick,” She Has

A Lifelong Disability Of Short Bowel Syndrome ......................................................... 21

III.

Least Restrictive Means Were Not Applied

To Mom-T.R.C. ........................................... 26

IV.

The Court Did Not Apply Strict Scrutiny

Analysis Required To Protect Mom-T.R.C.’s

Fourteenth Amendment Right Of Familial

Integrity ..................................................... 28

The Court Failed To Protect Mom-T.R.C.’s

Fourteenth Amendment Fundamental Right

Of Familial Integrity ................................. 35

TABLE OF CONTENTS – Continued

Page

VI.

The Guardian Ad Litem Was Compromised

Beyond Repair ............................................ 40

CONCLUSION..................................................... 45

APPENDIX

APPENDIX A

Wisconsin Court of Appeals Decision, 04/02/19 .... App. 1

APPENDIX B

Wisconsin Circuit Court, Transcript of Motion

Hearing, 11/20/18 ........................................... App. 36

APPENDIX C

Wisconsin Circuit Court, Decision on Remand

Motion, 06/28/18 ............................................. App. 43

APPENDIX D

Wisconsin Circuit Court, Order Concerning Termination of Parental Rights, 10/17/17........... App. 55

APPENDIX E

Supreme Court of Wisconsin, Order, 07/10/19 .... App. 60

TABLE OF AUTHORITIES

Page

CASES

Daubert v. Merrell Dow Pharmaceuticals Inc.,

509 U.S. 579 (1993) .................................................24

Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 28, 30

In re Gault, 387 U.S. 1 (1967) ......................... 30, 31, 40

In Re HG, 757 N.E.2d 864, 197 Ill. 2d 317 (2001) .......27

J.B. v. Washington County, 127 F.3d 919 (10th

Cir. 1997) .................................................................28

Jordon v. Jackson, 15 F.3d 333 (4th Cir. 1994) ..........28

Kenosha County, DHS v. Jodie W., 293 Wis.2d

530, 716 N.W.2d 845 (2006) ....................................35

Moore v. City of East Cleveland, 431 U.S. 494

(1977) ..................................................................... 3, 4

Santosky v. Kramer, 455 U.S. 745, 102 S. Ct.

1388 (1982) ............................................ 24, 28, 30, 32

Stanley v. Illinois, 405 U.S. 645 (1972).......................32

State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12

(1986) .......................................................................35

State v. Oak Creek, 232 Wis.2d 612, 605 N.W.2d

526 (2000) ................................................................19

State v. Smith, 323 Wis.2d 377, 780 N.W.2d 90

(2010) .......................................................................18

Washington v. Glucksberg, 521 U.S. 702 (1997) .........18

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV ...................................... passim

WI SCR 20:1.7.............................................................43

WI SCR 60 Preamble ..................................................40

Wis. Stat. §48.02(12g) ........................................... 23, 24

Wis. Stat. §48.21(5)(e)(2) ...................................... 32, 33

Wis. Stat. §48.299 ........................................... 15, 38, 39

Wis. Stat. §48.299(4)(b) ..............................................39

Wis. Stat. §48.415 ............................................. 2, 18, 27

Wis. Stat. §48.415(2) ...................................................17

Wis. Stat. §48.981(2) ...................................................32

OTHER AUTHORITIES

African American Children in Foster Care: HHS

and Congressional Actions Could Help Reduce

Proportion in Care, United States Government Accountability Ofﬁce, July 31, 2008,

GAO-08-1064T, found at: https://www.gao.gov/

assets/130/120982.pdf (last visited September

2, 2019) ....................................................................35

Roy G. Spece & David Yokum, Scrutinizing

Strict Scrutiny, 40 Vt. L. Rev., 285-351 (2015) .......29

vii

TABLE OF AUTHORITIES – Continued

Page

Short Bowel Syndrome, The National Institute

of Diabetes and Digestive and Kidney Diseases website, https://www.niddk.nih.gov/healthinformation/digestive-diseases/short-bowelsyndrome (last visited September 2, 2019) ............22

Suzanne Spence, Former County Lawyer Who

Often Represented Kids Investigated For Allegedly Searching Child Porn, Fox 6 Milwaukee, November 19, 2018, https://fox6now.com/

2018/11/19/former-county-lawyer-who-oftenrepresented-kids-investigated-for-allegedlysearching-child-porn/ (last visited September

2, 2019) ....................................................................41

OPINIONS BELOW

The Order Concerning Termination of Parental

Rights (Involuntary) was entered on October 17, 2017

(Pet. App. D). On June 28, 2018, the circuit court issued

a decision denying the ﬁrst postremand motion (Pet.

App. C). On November 20, 2018, the circuit court denied the second postremand motion (Pet. App. B). On

April 2, 2019, the Wisconsin Court of Appeals, District

I, afﬁrmed the circuit court’s decision and orders in an

unpublished decision, In re the Termination of Parental

Rights to D.U.C., a Person Under the Age of 18, State of

Wisconsin v. T.R.C., No. 2018-AP-820 (Ct. App. April 2,

2019) (Pet. App. A). The Wisconsin Supreme Court declined to hear the Petition for Review on July 10, 2019

(Pet. App. E).

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JURISDICTIONAL STATEMENT

The Wisconsin Supreme Court declined to hear

the Petition for Review on July 10, 2019. This Court’s

jurisdiction is invoked under 28 U.S.C. §1257(a). This

case involves issues regarding the Fourteenth Amendment fundamental right of familial integrity.

------------------------------------------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Section I of the Fourteenth Amendment to the

Constitution of the United States provides, in pertinent part, “No State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, §1.

Wis. Stat. §48.415 Grounds for involuntary

termination of parental rights.

. . . Grounds for termination of parental rights

shall be one of the following:

CONTINUING

NEED OF PROTECTION OR

SERVICES. . . .

(a) 1. That the child has been adjudged

to be a child . . . in need of protection or

services and placed . . . outside his or her

home pursuant to one or more court orders. . . .

3. That the child has been placed outside the home for a cumulative total period of 6 months or longer pursuant to an

order listed under subd. 1., . . . that the

parent has failed to meet the conditions

established for the safe return of the child

to the home; and, if the child has been

placed outside the home for less than 15

of the most recent 22 months, that there

is a substantial likelihood that the parent

will not meet these conditions as of the

date on which the child will have been

placed outside the home for 15 of the most

recent 22 months. . . .

Wis. Stat. §48.21 Hearing for child in custody.

(5)

ORDERS IN WRITING.

(e) 2. The court shall order the county

department . . . to conduct a diligent

search . . . to locate and provide notice . . .

to all adult relatives of the child. . . . The

notice shall include . . . the following:

b. . . . options that the person . . . has

under state or federal law to participate

in the . . . placement of the child. . . .

c. . . . requirements to obtain a foster

home license . . . or to receive kinship care

or long-term kinship care payments. . . .

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INTRODUCTION

Supreme Court Justice Lewis Powell, Jr. wrote the

decision for Moore v. City of East Cleveland, in which

the U.S. Supreme Court held that the Constitution protects the “sanctity of the family”:

Our decisions establish that the Constitution

protects the sanctity of the family precisely

because the institution of the family is deeply

rooted in this Nation’s history and tradition.

It is through the family that we . . . pass down

many of our most cherished values, moral and

cultural. Ours is by no means a tradition limited to respect for the bonds uniting the

members of the nuclear family. The tradition

of uncles, aunts, cousins, and especially

grandparents sharing a household along with

parents and children has roots equally venerable and equally deserving of constitutional

recognition. . . . millions of our citizens have

grown up in just such an environment, and . . .

have proﬁted from it. Moore v. City of East

Cleveland, 431 U.S. 494, 504-505 (1977).

TPR = family death penalty.

In this case, Mom-T.R.C. had her parental rights

terminated even though she did not endanger her

Daughter-D.U.C. Causing more unnecessary destruction to this family, instead of using “least restrictive

means” to place Daughter-D.U.C. with a ﬁt biological

relative, the State is still advocating to have DaughterD.U.C. adopted to non-biological foster parents, in circumstances that Daughter-D.U.C. would never see her

biological family again.

TPRs involving no child endangerment whatsoever unjustly happen to countless American families

each year, in cases where the parents’ Fourteenth

Amendment fundamental right of familial integrity is

not adequately protected by strict scrutiny analysis

and “least restrictive means.” This Petition asks this

Court to resolve issues regarding constitutional safeguards for the family so this guidance can be realistically used to protect the integrity and sanctity of

American families across the nation.

Mom-T.R.C. respectfully asks this Court to protect

the sanctity of her family to require Wisconsin Courts

to enforce her Fourteenth Amendment fundamental

right to familial integrity, by strict scrutiny analysis

and use of “least restrictive means,” which would reunite beloved Daughter-D.U.C. with her mother,

brothers, grandmother, and her extended family.

------------------------------------------------------------------

STATEMENT OF THE CASE

This is a TPR case in which Mom-T.R.C.’s1 parental rights were terminated regarding her 7-year-old

disabled Daughter-D.U.C.2 Mom-T.R.C. is an African

American single mother from Milwaukee, Wisconsin,

with a poverty background and a criminal conviction,

Due to using initials for conﬁdentiality, the following labels

are being used when clarity is needed:

“Mom-T.R.C.” – Respondent-Appellant mother of D.U.C.;

“Daughter-D.U.C.” – 7-year-old disabled daughter of

T.R.C.;

“Grandma-B.C.” – D.U.C.’s maternal grandmother;

“Brother-J.H.” – D.U.C.’s youngest biological teenage

brother;

“Brother-K.C.” – D.U.C.’s oldest biological adult

brother;

“Cousin-M.M.” – D.U.C.’s ﬁrst cousin, a married registered nurse; and

“Foster Parent-F.L.” – Foster parent of D.U.C. for 3½

months prior to the dispositional hearing.

D.U.C. was nearly 6 years old during the October 17, 2017

disposition hearing.

who has three older sons, and Daughter-D.U.C., a medically disabled child. R96-1.

Mom-T.R.C. is self-employed as an African American hair braider, who was honored to be chosen to be a

UMOS trainer, for a UMOS training program in 2017.3

R133-27.

In 2011, Daughter-D.U.C. was born a micropreemie at 25 weeks gestation, weighing one pound at

birth, with a heart defect and gastrointestinal defects,

requiring many surgeries, that D.U.C. will live with for

the rest of her life. D.U.C. has 40 centimeters of small

bowel left, leaving her with the lifelong disability of

Short Bowel Syndrome. R105.

Mom-T.R.C. and Grandma-B.C. were at Children’s

Hospital of Wisconsin every day for 18 months until

baby Daughter-D.U.C. was released into Mom-T.R.C.’s

care. R96-2. Nurses taught Mom-T.R.C. and GrandmaB.C. how to draw blood, give blood thinner for D.U.C.’s

heart defect, cleaning and care of a central line in her

chest, cleaning and care of a G-tube (gastrostomy

tube), and cleaning of the TPN tube site. R96-2.

Mom-T.R.C. fed via tube and medicated DaughterD.U.C. for her heart issues, cleaned the G-tube, and

kept the central line site and TPN tube site clean when

she was an 18-month-old baby at her home for approximately 8 months, D.U.C.’s most medically difﬁcult

UMOS is a non-proﬁt advocacy organization located in Milwaukee that provides programs and services to improve the employment, educational, health and housing opportunities of

under-served populations.

time period out of the hospital during her entire life.

R96-3.

On or about December 2013, Mom-T.R.C.’s sixth

grade son, Brother-J.H., D.U.C.’s teenage brother, who

was in trouble in juvenile court made allegations that

his home was unsafe, which caused her son BrotherJ.H. and Daughter-D.U.C. to be removed from MomT.R.C. R96-3. At that time, Mom-T.R.C. had taken

Daughter-D.U.C. to Children’s Hospital of Wisconsin.

D.U.C. was a pediatric patient in Children’s Hospital

when Milwaukee County served papers on Mom-T.R.C.

that the department was going to put Daughter-D.U.C.

and her son, Brother-J.H. into protective custody. R963. There was no imminent endangerment of DaughterD.U.C. by Mom-T.R.C. that caused D.U.C. to initially be

removed. R96-3-4. Brother-J.H. received special education at school for anger management and related behavioral issues. R96-3. Brother-J.H. later recanted the

false allegations. R103-1.

The department determined that Mom-T.R.C.’s

home was safe for her son, Brother-J.H., and returned

him to his mother’s custody, where he currently resides. R103-1. However, Daughter-D.U.C. was not returned. R96-4.

For the next 4 years, several different caseworkers

each re-started the process of reuniﬁcation over. R964. Daughter-D.U.C. was sporadically bounced in and

out of 10 out-of-home care placements:

12/17/2013 – 12/29/2013 Hospital/Inpatient Facility

2/30/2013 – 2/14/2014 Foster Home LOC3

2/15/2014 – 6/26/2014 Foster Home LOC4

6/27/2014 – 12/30/2014 Foster Home LOC2

12/31/2014 – 1/25/2015 Foster Home LOC2

1/26/2015 – 2/13/2015 Hospital/Inpatient Facility

2/14/2015 – 8/31/2016 Foster Home LOC4

9/1/2016 – 10/17/2016 Foster Home LOC3

10/18/2016 – 6/29/2017 Foster Home LOC4

6/30/2017 – 10/17/2017 Foster Home LOC2

R96-4. During these 4 years, Mom-T.R.C., D.U.C.’s

brothers J.H. and K.C. and D.U.C.’s Grandma-B.C.

were the only continuous people in her life, with

Mom-T.R.C. having 3-day or 2-day unsupervised visitation of Daughter-D.U.C. at times, and at one point,

Daughter-D.U.C. was given back to Mom-T.R.C. R964.

As Daughter-D.U.C. got older, Mom-T.R.C. went

with D.U.C. to occupational therapy, physical therapy,

speech therapy, and all doctor appointments including

D.U.C.’s cardiologist, gastrointestinal specialist, eye

doctor, and dentist. R96-5.

From February 2015 to November 2016, MomT.R.C. had unsupervised visits with Daughter-D.U.C.

R132-104-105.

Kristen Hintz became a new caseworker in 2015,

from South Dakota, and was assigned to this case in

November 2016. R132-38-39, 104. Caseworker Hintz

knew about D.U.C.’s African American adult BrotherK.C. who had attended college but failed to consider

him for guardianship/adoption of D.U.C. R96-6. Hintz

also failed to consider D.U.C.’s African American ﬁrst

cousin, Cousin-M.M., a married registered nurse with

children about D.U.C.’s age. R96-6. Instead, Hintz put

D.U.C. up for national adoption. R132-41.

Early December 2016, legal counsel for MomT.R.C. advised her to agree to a no contest plea. MomT.R.C. told her lawyer she wanted to go to trial and

ﬁght to keep her daughter. R103-1. On December 19,

2016, Mom-T.R.C., under the guidance of her lawyer,

took a no contest plea. R103-2.

The Court, in its colloquy, described the disposition was “a bit different” than a TPR trial, the Court

would consider “all of the evidence” and outcomes, including getting her daughter back or placement with a

ﬁt willing relative:

Court: . . . by entering your no contest plea,

you’re not agreeing to termination of your parental rights. . . . at that dispositional hearing

. . . you’ll still have the ability to challenge

whether I should in fact terminate your parental rights.

Court: . . . at this dispositional hearing the issues are a bit different. The only focus at that

point will be on what is in [D.U.C.’s] best interest. . . .

Court: . . . at the dispositional phase of this

case, I’ll consider all of the evidence . . . it’s

possible that my decision will be to terminate

your parental rights and . . . make [D.U.C.]

available for adoption . . . [or] guardianship.

It’s possible that my decision will be not to terminate your parental rights . . . or . . . order

long term placement in foster care or placement with a ﬁt and willing relative. . . .

R124-15-16.

Mom-T.R.C. understood that the Disposition

would be “a bit different,” as stated by the judge, but

essentially a TPR trial and that she still had her full

ability with “all of the evidence” to prove that she was

a ﬁt parent. R103-2-4.

Following the December 19, 2016 hearing, MomT.R.C. worked very hard to prove her ﬁtness as a parent of Daughter-D.U.C. R103-3-4. (See Section I of this

brief for details of numerous actions that Mom-T.R.C.

did over the next 11 months to demonstrate parental

ﬁtness.)

On June 30, 2017, Foster Parent-F.L. became

D.U.C.’s foster parent.4 R96-4.

Foster Parent-F.L. knew D.U.C. for just 3½ months before

caseworker Hintz quickly decided at the October 17, 2017 dispositional hearing that Foster Parent-F.L. should adopt D.U.C., instead of selecting a ﬁt relative, from D.U.C.’s extended family,

who knew D.U.C. her entire life.

On July 26, 2017, the circuit court learned caseworker Kristen Hintz intentionally shortened MomT.R.C.’s Sunday visitation hours, on Mom-T.R.C.’s day

off from work, and added more visitation hours on

Monday, during Mom-T.R.C.’s work hours, so that Foster Parent-F.L. had more Sunday hours to go camping

with D.U.C. R129-5-6.

Mom-T.R.C. scheduled the August 16, 2017 doctor’s visit to pediatric gastrointestinal specialist Dr.

Praveen Goday, MD because Daughter-D.U.C. was having ongoing issues with loose stools after Dr. Goday instructed that D.U.C. could start eating table foods.

R133-13-14. Mom-T.R.C. attended the August 16, 2017

doctor visit, during which Dr. Goday diagnosed D.U.C.

as lactose intolerant and changed her diet to reduce

dairy and fruit in an effort to resolve the “loose stools”

problem. R103-4.

On August 17, 2017, caseworker Kristen Hintz,

informed the Court that there was “new news” that

Daughter-D.U.C. was diagnosed as lactose intolerant,

“which may be . . . the difﬁculty with . . . her being

sick”:

Ms. Hintz: . . . new news as of yesterday for

an appointment . . . [Mom-T.R.C.] was present

at, a doctor’s appointment at the GI clinic with

[D.U.C.] and [Foster Parent-F.L.] . . . It appears that [D.U.C.] is lactose intolerant and

cannot also eat food [sic], which may be . . . the

difﬁculty with her bowel movements and her

being sick after her visits with her mother

[Mom-T.R.C.]. . . . [Mom-T.R.C.] wasn’t aware

of these things. I wasn’t aware that [D.U.C.]

was possibly lactose intolerant and couldn’t

have food [sic], like one serving a week is now

the recommended food intake for her. . . . 5

R130-4-5.

Caseworker Hintz told the court that it wasn’t MomT.R.C.’s fault, “[Mom-T.R.C.] wasn’t aware of these

things.” R130-4-5.

Caseworker Kristen Hintz testiﬁed Mom-T.R.C.

reduced dairy and fruit as soon as it was identiﬁed by

Dr. Goday as a problem. R132-60. By mid-September

2017, D.U.C.’s loose stools issue had already improved,

just one month after Dr. Goday’s new August 16, 2017

instructions, and this issue remained improved. R103-4.

At the October 17, 2017 disposition hearing, caseworker Kristen Hintz testiﬁed the State had been “very

close to reunification,” of Mom-T.R.C. and DaughterD.U.C. on multiple occasions. R132-84. The “reuniﬁcation barrier,” claimed by caseworker Hintz was that

Mom-T.R.C. was causing Daughter-D.U.C. to be “sick”:

Ms. Hintz: I am unaware of any service that

we haven’t provided to [Mom-T.R.C.] to move

this case towards reuniﬁcation.

Q. Have you been able to ﬁgure out what the

barrier is?

The word “food” is an error in the transcript; the correct

word is “fruit.” On August 16, 2017, Dr. Praveen Goday diagnosed

D.U.C. as lactose intolerant, restricting dairy, and limited her

fruit to one serving per week in order to resolve the loose stool

issue. R132-60.

Ms. Hintz: . . . I am confused in regards to

why [D.U.C.] is getting sick after visits . . .

when I do go out, [Mom-T.R.C.] knows how to

give her the appropriate feeds and will verbalize that, and she can verbalize the special

needs of [D.U.C.], but it just appears that it’s

not being appropriately met when she is unsupervised with [D.U.C.].

R132-86. (Emphasis added.)

During testimony, caseworker Hintz omitted her new

knowledge, that the loose stools reuniﬁcation barrier

issue had already been resolved when Dr. Goday diagnosed D.U.C. with lactose intolerance and limited dairy

and fruit on August 16, 2017, and Hintz knew it was

not Mom-T.R.C.’s fault. R130-4-5.

Foster Parent-F.L. alleged that one day, a diaper

was left on D.U.C. during the entire multi-hour visit

with Mom-T.R.C. R132-26-27.6

Caseworker Kristen Hintz testiﬁed her supervisor

overruled Hintz when deciding that Mom-T.R.C. did

not need supervised visits with D.U.C. R132-106. However, Hintz and her helper Alice supervised and scrutinized numerous tube feedings of D.U.C. performed by

Mom-T.R.C. over many months, with no issues. R13243-54. Hintz testiﬁed that Mom-T.R.C. properly administered tube feeds and medications to D.U.C. R132-68.

Foster parents have motives to lie about biological parents.

Foster Parent-F.L. receives about $1,000 per month to keep

D.U.C. in her home.

In contrast, caseworker Kristen Hintz was not

concerned about D.U.C.’s 24 hours of loose stools after

Foster Parent-F.L. gave D.U.C. pizza in October 2017,

just days before the dispositional hearing. R132-17. Besides loose stools at the foster home, D.U.C. had an unexplained “seizure-like episode” just hours after being

in care of Foster Parent-F.L. R132-50, and D.U.C. also

fell on stairs twice and got a cut within just 3½ months

of Foster Parent-F.L.’s foster care R132-97-98, all of

which Hintz, the State, and the Assigned-GAL did not

ﬁnd were barriers for adoption.

On October 17, 2017, the court terminated MomT.R.C.’s parental rights based upon this reasoning:

Court: . . . I think that [Mom-T.R.C.] has

made considerable strides . . . because of that

struggle . . . foster placement . . . appears to be

. . . well suited to address those signiﬁcant

medical needs, I ﬁnd . . . that this . . . weighs

in favor of termination of parental rights.

R133-47.

Court: . . . [Mom-T.R.C.] spent considerable

time there caring for her child [in the hospital] . . . in the N.I.C.U. . . . Nevertheless,

[D.U.C.] spent a signiﬁcant amount of time in

out-of-home care. [Mom-T.R.C.] has tried very

hard to reunify with her. . . . But [Mom-T.R.C]

has not been able to successfully . . . reunify.

R133-53.

Court: I know that if I do not order termination of parental rights [D.U.C.] will continue

to have a loving mother and other loving

family members who are very committed to

her. R133-54.

Court: . . . I do believe that [D.U.C.] has not

always received adequate care during her visits with [Mom-T.R.C.]. I do believe there have

been signiﬁcant stretches of time when [MomT.R.C.] has not changed [D.U.C.’s] diaper or attended to her feeding needs adequately during those visits. . . . R133-54.

The Order Concerning Termination of Parental

Rights (Involuntary) stated Mom-T.R.C.’s parental

rights were terminated due to “continuing need of protection or services.” R75-1.

The deadline to appeal lapsed. On April 6, 2018,

Mom-T.R.C.’s newly hired appellate attorney ﬁled a

motion to extend time to ﬁle notice of appeal, which

was granted. On April 27, 2018, Mom-T.R.C. ﬁled her

notice of appeal.

On May 15, 2018, Mom-T.R.C. ﬁled a motion for

remand to the juvenile court. On May 18, 2018, the

Court of Appeals issued an order to remand the case to

the juvenile court.

On June 28, 2018, the circuit court issued a Decision denying the motion for remand. R99. The Decision

on Remand Motion stated: 1) the rules of evidence did

not apply to the dispositional hearing, pursuant to Wis.

Stat. §48.299; and 2) this TPR case did not require expert medical testimony by D.U.C.’s doctor, Dr. Praveen

Goday, to prove caseworker Hintz’s alleged “sickness”

of D.U.C., because it could be proven by lay opinion testimony of the caseworker. R99.

On July 5, 2018 Mom-T.R.C. ﬁled a motion for a

second remand to the juvenile court. On July 16, 2018,

the Court of Appeals issued an order for a second remand of the case to the juvenile court.

On July 25, 2018, Mom-T.R.C. ﬁled a second

postremand motion at juvenile court.

On November 6, 2018, Mom-T.R.C. ﬁled a supplemental brief that Assigned-GAL’s7 independent judgment was compromised beyond repair by probable

cause to seize his computer for alleged child pornography. R109. On November 19, 2018, a subpoena duces

tecum was served on Milwaukee County District Attorney John Chisholm or designee. On November 20,

2018, prior to the second postremand hearing, Deputy

District Attorney Elizabeth Mueller came to court to

state that she would not be producing photocopies of

the underlying documents for the search warrant.

R134-5.8

On November 20, 2018, the juvenile court denied

Mom-T.R.C.’s second postremand motion. R134.

“Assigned-GAL” refers to the guardian ad litem assigned to

D.U.C. from approximately 2016 to August 2018, including during the no-contest plea and during the dispositional phase, up until he was removed from the case, due to alleged 900+ child

pornography viewings at his ofﬁce computer.

The District Attorney’s Ofﬁce issued the search warrant

that it would not produce.

On April 1, 2019, the Wisconsin Court of Appeals,

District I denied Mom-T.R.C.’s motion for a three-judge

panel.9

On April 2, 2019, the Wisconsin Court of Appeals,

District I, afﬁrmed the circuit court’s decision and orders in an unpublished decision. In re the Termination

of Parental Rights to D.U.C., a Person Under the Age of

18, State of Wisconsin v. T.R.C., No. 2018-AP-820 (Ct.

App. April 2, 2019). The Wisconsin Supreme Court declined to hear the Petition for Review on July 10, 2019.

Mom-T.R.C., D.U.C.’s brothers J.H. and K.C., and

Grandma-B.C. have not seen R134-7 or heard from

Daughter-D.U.C. since October 2017. R134-23-24.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

Mom-T.R.C. Demonstrated That She is A

Fit And Willing Parent.

Mom-T.R.C.’s parental rights were unconstitutionally terminated for the overly broad and vague reason

of “continuing need of protection or services,” pursuant

to the application of Wis. Stat. §48.415(2), despite no

factual evidence that Daughter-D.U.C. was “endangered” in any way. The caseworker testiﬁed that the

“reunification barrier” was “loose stools” of permanently

gastrointestinal-disabled Daughter-D.U.C. after a few

A proper motion for a three-judge panel was timely ﬁled but

the motion was denied, and Mom-T.R.C. was given only one judge

for the TPR case, which is considered the “family death penalty.”

visits with Mom-T.R.C. R132-86, which never “endangered” D.U.C. The application of Wis. Stat. §48.415 is

overly broad such that unbridled discretion was used

to terminate Mom-T.R.C.’s parental rights for the reason of loose stools with no child endangerment.

A few instances of loose stools in diapers is pretext for rationalizing this extremely lengthy case, involving racial bias. For 4 years, different caseworkers

repeatedly re-started the process of reuniﬁcation with

Mom-T.R.C., thereby being “very close to reuniﬁcation”

on multiple occasions R132-84, while Daughter-D.U.C.

was sporadically bounced in and out of 10 out-of-home

care placements. R96-4.

In October 2017, when Foster Parent-F.L. ignored

Dr. Goday’s diet instructions and fed pizza to D.U.C.,

causing D.U.C. to have 24 hours of loose stools, just

days before the dispositional hearing. R132-17. (App. 42),

the State, GAL, and CPS still wanted Foster ParentF.L. to adopt D.U.C.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution offers individuals “heightened protection against government

interference with certain fundamental rights and

liberty interests” regardless of the procedure employed

by the government. Washington v. Glucksberg, 521

U.S. 702, 719-20 (1997). Unconstitutional “as-applied”

means that the law is unconstitutional as applied to

the challenger. State v. Smith, 323 Wis.2d 377, 780

N.W.2d 90 (2010). A party has standing to challenge a

statute’s constitutionality if that party has suffered a

threatened or actual injury and the interest asserted

is recognized by law. State v. Oak Creek, 232 Wis.2d

612, 605 N.W.2d 526 (2000).

Caseworker Kristen Hintz testiﬁed that the State

was “very close to reuniﬁcation,” of Mom-T.R.C. and

Daughter-D.U.C. on multiple occasions. R132-84.

At the October 2017 dispositional hearing, caseworker Kristen Hintz testiﬁed regarding a long list of

parental actions of Mom-T.R.C. that were not at issue

for this TPR case:

•

Mom-T.R.C. took care of D.U.C.’s medical

needs at home, full-time from February

2013 to December 2013 (when D.U.C. was

approximately 18-months-old). R132-61.

•

Mom-T.R.C. had no cognitive issues, no

mental health impediments, no domestic

violence issues, and Mom-T.R.C. was not

under the inﬂuence of drugs. R132-96-97.

•

Mom-T.R.C. properly administers the

feeds and medications to D.U.C. R132-68.

•

Mom-T.R.C. understands D.U.C.’s medical issues and how to address them.

R132-69.

•

Mom-T.R.C. used the appropriate amounts

of table food for D.U.C. and packed up appropriate amounts of foods into baggies to

be visually reviewed by Hintz. R132-60.

•

Even though Mom-T.R.C. did not own a

car, Mom-T.R.C. went to D.U.C.’s “more

important” doctor visits. R132-99-100.

•

Mom-T.R.C. took photos of unsupervised

feedings on her cell phone to send to

Hintz. R132-55-56.

•

Mom-T.R.C. consistently had cell phone

conversations with helper Alice or Hintz

about 15 minutes about their location

prior to the many times that Alice or

Hintz watched Mom-T.R.C. administer

tube feedings. R132-52.

•

Mom-T.R.C. consistently contacted Hintz

about her work schedule. R132-103.

•

Mom-T.R.C. called to verify dates/times of

upcoming doctor visits. R132-100-101.

•

Mom-T.R.C. was gainfully self-employed

as an African American hair braider, honored to be chosen to train other people under a UMOS training program in 2017.

R133-27.

•

Mom-T.R.C. did not miss visits with

Daughter-D.U.C. R132-35.

•

Daughter-D.U.C. has a loving bond with

Mom-T.R.C. and excitement to hug her

mom and say “I love you” whenever she

saw her mom. D.U.C. was always excited

to see Brother-J.H. and Grandma-B.C.

R132-71.

Neither the State nor the GAL disputes the above testimony regarding Mom-T.R.C.’s parenting.

II.

Daughter-D.U.C. Was Not “Sick,” She Has A

Lifelong Disability Of Short Bowel Syndrome.

On August 17, 2017, caseworker Kristen Hintz

told the Court that there was “very new news” that

D.U.C. was diagnosed as lactose intolerant by Dr.

Praveen Goday, her pediatric GI specialist, “which may

be . . . the difﬁculty with her bowel movements and her

being sick after visits with her mother”:

Ms. Hintz: . . . Very new news as of yesterday for an appointment that I was not present

at [Mom-T.R.C.] was present at, a doctor’s

appointment at the GI clinic with [D.U.C.]

and [Foster Parent-F.L.]. . . . It appears that

[D.U.C.] is lactose intolerant and cannot also

eat food,10 which may be some of the difﬁculty

with her bowel movements and her being sick

after her visits with her mother. . . . [MomT.R.C.] wasn’t aware of these things. I wasn’t

aware that [D.U.C.] was possibly lactose intolerant and couldn’t have food, like one serving

a week is now the recommended food intake

for her. . . . R130-4-5.

Foster Parent-F.L. testiﬁed that D.U.C.’s loose stools issue after visits with Mom-T.R.C. had already signiﬁcantly improved by mid-September 2017, just one

The intended word is “fruit,” not “food.” See footnote 5.

month after following Dr. Goday’s new August 16, 2017

food instructions, and this issue remained improved

until the October 17, 2017 dispositional hearing. R13217.

Daughter-D.U.C. was never “sick” with loose

stools; D.U.C. has a lifelong disability of Short Bowel

Syndrome, which causes loose stools. D.U.C. has only

40 centimeters (1.3 feet) of small intestines (R105),

when the average person has 20 feet of small intestines. Short Bowel Syndrome is not a “sickness,” but

is a permanent disability, for which D.U.C. will experience problems with loose stools for the rest of her

life.

According to the National Institute of Diabetes

and Digestive and Kidney Diseases: 1) the main symptom of Short Bowel Syndrome is “loose watery stools”

and; 2) people with Short Bowel Syndrome are more

likely to develop lactose intolerance, which causes diarrhea:

. . . The main symptom of short bowel syndrome is diarrhea – loose watery stools. . . .

. . . People with short bowel syndrome are also

more likely to develop food . . . sensitivities,

such as lactose intolerance. Lactose intolerance is a condition in which people have digestive symptoms – such as . . . diarrhea . . . after

eating or drinking milk or milk products. . . . 11

Short Bowel Syndrome, The National Institute of Diabetes

and Digestive and Kidney Diseases website, https://www.niddk.nih.

However, even after caseworker Hintz learned new information in August 2017 that D.U.C. was diagnosed

as lactose intolerant and needed a more restrictive table food diet from Dr. Goday, limiting dairy and fruit,

and it was not Mom-T.R.C.’s fault R130-4-5, Hintz

maintained her former stance, testifying at the dispositional hearing on October 17, 2017, that the reuniﬁcation “barrier” was that she still did not know why

D.U.C. was “sick” with “loose stools,” wrongly blaming

Mom-T.R.C. R132-86.

The State failed to prove up its case because it had

no medical expert testimony and no medical evidence

that D.U.C. was “sick” or “endangered” as caused by

Mom-T.R.C.’s care, which caseworker Hintz testiﬁed

was the only barrier to reuniﬁcation. R132-86.

The State did not meet Wis. Stat. §48.02(12g)’s

Deﬁnition of “Neglect” because no medical expert testiﬁed that D.U.C.’s physical health was “seriously endangered” by Mom-T.R.C.:

48.02 Deﬁnitions. . . .

(12g) “Neglect” means failure, refusal, or inability on the part of the caregiver, for reasons

other than poverty, to provide necessary care,

food, clothing, medical or dental care or shelter so as to seriously endanger the physical

health of the child.

gov/health-information/digestive-diseases/short-bowel-syndrome

(last visited September 2, 2019).

Loose stools in diapers do not “seriously endanger the

physical health of the child,” and is, therefore, not statutory “Neglect,” as deﬁned in Wis. Stat. §48.02(12g).

Caseworker Kristen Hintz is not a medical expert

because she lacks the “scientiﬁc knowledge” required

to testify regarding the medical allegations of “sickness” that she raised, thereby not meeting the Daubert

qualiﬁcations to testify as medical expert. The “trial

judge must ensure that any and all scientiﬁc testimony

or evidence admitted is not only relevant, but reliable.”

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S.

579, 589 (1993).

However, when appellate counsel produced pediatric gastrointestinal specialist Dr. Praveen Goday,

D.U.C.’s doctor, at court to provide medical expertise for

why D.U.C.’s loose stools did not mean that D.U.C. was

“sick” or “endangered,” the court ruled that Dr. Goday

could not testify. R134-24.

“Since the State has an urgent interest in the welfare of the child, it shares the parent’s interest in an

accurate and just decision at the factﬁnding proceeding.” Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct.

1388 (1982). The State and the Assigned-GAL did not

object to the court refusing to allow Dr. Goday’s medical testimony. R134-24.

Appellate counsel submitted an Offer of Proof for

Dr. Praveen Goday, MD that he would have testiﬁed

the following:

He has been a pediatric gastrointestinal

specialist who has been treating physician regarding [D.U.C.’s] GI disability for

several years.

[Mom-T.R.C.] attended many doctor visits

with [Daughter-D.U.C.] over the course of

several years at Dr. Goday’s ofﬁce, according to medical/ofﬁce records.

In 2017, Dr. Goday instructed [MomT.R.C.] to experiment with [DaughterD.U.C.’s] table foods.

During those same months in 2017 when

[D.U.C.’s] experimentation with table

foods took place, loose stools also took

place.

The Gastrointestinal consequences of

[D.U.C.] trying certain new table foods

per Dr. Goday’s instructions was loose

stools.

[Mom-T.R.C.] was the person who requested the August 16, 2017 visit for

[D.U.C.] at Dr. Goday’s ofﬁce in order to

address loose stools, according to medical/ofﬁce records.

On or about August 16, 2017, [MomT.R.C.] attended [D.U.C.’s] doctor visit

with Dr. Goday.

On or about August 16, 2017, Dr. Goday

diagnosed [D.U.C.] with lactose intolerance, and he made a new table food diet

for [D.U.C.], omitting dairy, and limiting

fruit, in order to reduce [D.U.C.’s] problem

of loose stools.

Prior to August 16, 2017, [D.U.C.] had

been allowed by Dr. Goday to eat table

food that included dairy products, which

caused loose stools.

10) The loose stools caused by trying new table foods per Dr. Goday’s instructions did

not mean that [D.U.C.] was “sick” or “endangered” from loose stools.

11) Terminating parental rights was not

medically warranted based upon [D.U.C.’s]

loose stools as a result of trying new table

foods in 2017, due to Dr. Goday’s table

diet instructions.

R111-1-2.

Dr. Goday’s testimony was material and relevant. Had

Dr. Goday been allowed to testify, his medical testimony would have proven that there is no merit for this

TPR.

III. Least Restrictive Means Were Not Applied

To Mom-T.R.C.

Mom-T.R.C. did all possible parental actions she

could to prove her ﬁtness to the caseworker. Further,

two biological adult relatives, adult Brother-K.C. who

informed the court he is willing to be guardian/adopt

his sister (R97) and married registered nurse CousinM.M. (R96-6), are ﬁt African American relatives capable of guardianship/adoption. R96-6. Instead, the State

still wants adoption to a non-biological foster parent

who has severed all contact with D.U.C.’s mother,

brothers, and extended family. R134-23-24.

The Illinois Supreme Court held that Illinois’s

statutory adoption of the Adoption and Safe Families

Act of 1997 (ASFA)’s “15/22 months” technical presumption of parental unﬁtness, was “not narrowly tailored” and unconstitutional because it results in

illogical “Alice-in-Wonderland rulings” of ﬁt capable

parents losing their children:

As E.W. explains: A parent . . . could present

evidence of her ability to care for her child as

part of the best interest phase. . . . The court

. . . could rationally conclude that a parent is

. . . ﬁt, . . . capable of safely and adequately

caring for the child, yet still conclude that

the child’s best interests will not be served

by returning the child to the parent’s home.

[It] compels trial court to make the Alice-inWonderland ruling that a fit parent is, by

force. We agree with the position advanced

by E.W.

In Re HG, 757 N.E.2d 864, 197 Ill. 2d 317 (2001).

Analogous to In Re HG, the trial court’s application of Wis. Stat. §48.415 violated Mom-T.R.C.’s Fourteenth Amendment fundamental right to familial

integrity by terminating her parental rights for reasons other than actual parental unﬁtness and in a

manner “not narrowly tailored.” The evidence that it is

unconstitutional as applied is that there is a gross result where a family with no endangerment issues is

permanently destroyed, in the harshest means possible, by adoption to non-related foster parents who have

refused to allow Daughter-D.U.C. to communicate with

her mother and brothers since October 2017.

IV. The Court Did Not Apply Strict Scrutiny

Analysis Required To Protect Mom-T.R.C.’s

Fourteenth Amendment Right Of Familial

Integrity.

The trial court did not use strict scrutiny analysis

required to protect Mom-T.R.C.’s Fourteenth Amendment fundamental right of familial integrity. MomT.R.C. has the fundamental constitutional right, to

keep a parent and child together, whenever possible.

The fundamental right to familial integrity is protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95 (1982).

The forced separation of parent from child, even for a

short time, represents a serious infringement upon

both the parent’s and child’s rights. J.B. v. Washington

County, 127 F.3d 919, 925 (10th Cir. 1997) citing Jordon v. Jackson, 15 F.3d 333, 346 (4th Cir. 1994).

Mom-T.R.C.’s constitutional right of familial integrity with Daughter-D.U.C. is a fundamental right,

requiring strict scrutiny analysis. The U.S. Supreme

Court in Griswold v. Connecticut, 381 U.S. 479, 485

(1965) held that “fundamental constitutional guarantees,” require strict scrutiny analysis because “a government purpose to control or prevent activities

constitutionally subject to state regulation may not be

achieved by means that sweep unnecessarily broadly.”

Professor Roy Spece and David Yokum, in their law

journal article Scrutinizing Strict Scrutiny, explain the

strict scrutiny analysis in simple terms:

Even if a plaintiff shows a fundamental right

. . . , he will only be protected by strict scrutiny

if he shows a “substantial intrusion” on the

fundamental right. Spece at 304.

The Court’s most common articulations of

strict scrutiny . . . make explicit two component inquiries, with the government bearing

the burden of proof on each. These components are compelling state interest and either

necessity or narrow tailoring. Spece at 95.

The government action must . . . [address] an

actual problem, a problem that has not already been adequately dealt with, and a problem that cannot be addressed through the use

of a less or least restrictive alternative. Spece

at 296.

. . . scrutiny looks to whether . . . a problem

can be dealt with in an alternative way that

treads less on individual rights. It ensures

that a government will not gratuitously trammel rights. . . . Spece at 309.

Roy G. Spece & David Yokum, Scrutinizing

Strict Scrutiny, 40 Vt. L. Rev., 285-351

(2015).

The State has two main compelling interests: 1)

Protection of Mom-T.R.C.’s fundamental constitutional

right of familial integrity; Spece at 305; and 2) A

parens patriae interest in preserving and promoting

the welfare of the child Daughter-D.U.C., which “favors

preservation, not severance, of natural family bonds.”

Santosky, 455 U.S. at 766.

The court must use “least restrictive means” and

“narrow tailoring” to restrict fundamental constitutional parental rights. Griswold, 381 U.S. at 485. The

functional reason why “least restrictive means” is applied, is because it forces the State to methodically

evaluate the full set of legal measures available in order to adequately achieve their goal of safety of the

child while choosing the least harsh approach of restricting this fundamental right – such as doctor inspections at scheduled appointments or ﬁt willing

biological relatives for guardianship/adoption – with

the purpose of avoiding, whenever possible, the harshest measure of adoption to a non-biologically-related

person who has no interest in preserving the familial

connection of the mother and child.

Without “least restrictive means” and “narrow tailoring,” there is no objective standard applied to the

parent’s and the child’s fundamental constitutional

rights, which allows unbridled discretion that results

in highly subjective illogical rulings that are arbitrary

and manifestly unjust.

U.S. Supreme Court Justice Abraham Fortas was

critical of attempts by juvenile court judges to replace

constitutional rights with their own unbridled discretion, which, in In re Gault, resulted in the extraordinarily harsh punishment for obscene phone calls of a

maximum of 6 years custody for 15-year-old Gerald

Gault as a “delinquent child” given no constitutional

safeguards than had Gault been fully protected by constitutional rights as an adult to potentially receive a

maximum of two months jail and a $50 ﬁne:

. . . the highest motives and most enlightened

impulses led to a peculiar system for juveniles . . . in practice. . . . Juvenile Court history has again demonstrated that unbridled

discretion, however benevolently motivated,

is frequently a poor substitute for principle

and procedure. . . . The absence of procedural

rules based upon constitutional principle has

not always produced fair, efﬁcient, and effective procedures. Departures from established

principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. In re Gault, 387 U.S. 1, 17-19

(1967).

Required Constitutional procedure and analysis are

called “safeguards” because the required analysis

helps protect U.S. citizens from egregious rulings

based on unbridled discretion by lower courts.

With D.U.C. returned to Mom-T.R.C., there is already a built-in “least restrictive” means of protecting

D.U.C. because D.U.C. regularly sees several different

medical professionals every month (R132-99-100) who

frequently inspect D.U.C.’s bodily integrity/safety and

who have the authority to immediately act to get

D.U.C. removed from her home if she is abused,

neglected, or otherwise endangered, pursuant to Wis.

Stat. §48.981(2).

Wis. Stat. §48.21(5)(e)(2) requires the agency

providing services to the child “conduct a diligent

search” to locate and provide notice to “all adult relatives of the child,” of options to participate in the

care/placement of the child and the requirements to obtain a foster home license.

Caseworker Kristen Hintz testiﬁed that she believed it would not be harmful to D.U.C. to legally sever

her ties with her mother, her brothers, her grandma,

and her maternal family members. R132-81-82.

At appeal, the State claimed that Mom-T.R.C. did

not even argue for placement of Daughter-D.U.C. with

her biological family, instead of non-relative adoption:

T.R.C. complains that the trial court did not

consider relatives, but these relatives were

never offered to the court as an alternative to

TPR, as T.R.C. was ﬁghting for D.U.C. to come

home and not arguing for placement with

family. State Appeal Brf. p. 34.

Of course, Mom-T.R.C. wants beloved Daughter-D.U.C.

to stay within her biological family! A natural parent’s

“desire for, and right to, the companionship, care, custody, and management of his or her children” is an

interest far more precious than any property right.

Santosky v. Kramer, 452 U.S. at 27, quoting Stanley v.

Illinois, 405 U.S. 645, 651 (1972). Mom-T.R.C. could

visit D.U.C. frequently if she lived with a biological

relative. For the State to argue at appeal that

Mom-T.R.C., an African American mother, would not

care whether a close family relative or a complete

stranger got custody of her daughter evokes historical

slavery arguments rationalizing taking African American slave children from their biological parents to sell

to strangers.

Two African American relatives were good candidates for guardianship/adoption of D.U.C. but were not

considered by the State. Caseworker Kristen Hintz

fully knew that D.U.C.’s African American adult

Brother-K.C. existed, who attended 2 years of college,

was gainfully employed, and had no criminal record

but she never considered him for guardianship/

adoption of D.U.C. R96-6. Hintz’s intentional decision

to deliberately not provide K.C., a young African American man, of his options for guardianship/adoption of

his sister D.U.C., required to be given to K.C. by Wis.

Stat. §48.21(5)(e)(2), evokes the “Black baby daddy”

stereotype of all young African American men automatically not being responsible enough to take care of

children. The reality is that countless young African

American men take good care of minor children across

our nation.

Cousin-M.M., D.U.C.’s ﬁrst cousin, biologically related, was a registered nurse employed at a hospital

and married with young children around D.U.C.’s age,

who lived in the Milwaukee area during 2017 R96-6,

was another ﬁt biological relative for guardianship/

adoption of D.U.C. Instead of considering ﬁt biological

relatives, caseworker Hintz, instead, put D.U.C. up for

national adoption. R132-41.

Daughter-D.U.C. is a little girl who dearly loves

her family:

Ms. Hintz: [D.U.C.] will ask me on the car

ride if she is going to get to see nana or buba

. . . I normally say well, buba might be at

school. . . . Buba in reference is [Brother-J.H.],

and she calls [Grandma-B.C.] nana. . . . at

[Mom-T.R.C.’s] house, . . . she is excited by the

time we are walking up the stairs, and when

she sees her mom open the door, she does get

excited and gives her mom a hug, and she says

I love you right away. So [D.U.C.] has a level

of excitement. . . .

R132-71.

D.U.C., who cried after visits when she was taken

away from Mom-T.R.C. R132-25, has been needlessly

ripped from her mom, brothers, grandma, and her extended family.

The United States Government Accountability Ofﬁce’s research found that placement of African American children into their extended families was “less

stressful to the child” and “maintain[s] familial ties”:

African American children are more likely . . .

to enter into the care of relatives . . . child welfare researchers and ofﬁcials . . . considered

these placements [with relatives] to be positive options for African American children

because they are less stressful to the child and

maintain familial ties.12

Brother-K.C. informed the circuit court by afﬁdavit that he still wants to be guardian/adopt his younger

sister D.U.C., instead of his sister being adopted to

non-biological foster parents. R97-1-2.

The Court Failed To Protect Mom-T.R.C.’s

Fourteenth Amendment Fundamental Right

Of Familial Integrity.

The parent must have knowledge of the Constitutional rights given up by a no contest plea in a TPR

case. Kenosha County, DHS v. Jodie W., 293 Wis.2d 530,

716 N.W.2d 845 (2006). The constitution requires an

afﬁrmative showing that a plea was entered knowingly, voluntarily, and intelligently. State v. Bangert,

131 Wis.2d 246, 257, 389 N.W.2d 12 (1986).

Trial counsel testified Mom-T.R.C.’s goal was

getting “D.U.C. back and Mom-T.R.C. was “adamant”

about wanting to go to trial:

Q. . . . [Mom-T.R.C.] was pretty adamant

about wanting to go to trial, correct?

African American Children in Foster Care: HHS and Congressional Actions Could Help Reduce Proportion in Care, United

States Government Accountability Ofﬁce, July 31, 2008, GAO-081064T, found at: https://www.gao.gov/assets/130/120982.pdf (last

visited September 2, 2019).

A. She was adamant about ﬁghting to get

[D.U.C.] back, so yes.

R134-61.

Regarding parental ﬁtness issues, trial counsel testiﬁed she had no concerns for Mom-T.R.C. regarding:

cognitive abilities, drugs, alcohol, contraband, leaving

D.U.C. unattended, and no issues of physical abuse or

sexual abuse of D.U.C. R134-62, 65-67.

On December 19, 2016, the ﬁrst judge, in her colloquy to Mom-T.R.C., erroneously minimized the signiﬁcance of the no contest plea when characterizing a

disposition hearing issues as “a bit different” than a

TPR trial:

Court: Do you understand by entering your

no contest plea, you’re not agreeing to termination of your parental rights . . . at that dispositional hearing . . . you’ll still have the

ability to challenge whether I should in fact

terminate your parental rights.

Yes.

Court: . . . at this dispositional hearing the

issues are a bit different. The only focus at

that point will be on what is in [D.U.C.’s] best

interest. . . . I will no longer need to decide

whether grounds exist to terminate your parental rights or whether the State has proven

grounds by clear and convincing evidence. Do

you understand that?

Yes.

R124-15. (Emphasis added.)

The ﬁrst judge continued the colloquy by explaining

that the court would consider “all of the evidence” and

could still choose to 1) not terminate parental rights;

2) place D.U.C. with a ﬁt and willing relative; 3) continue long term foster care; 4) guardianship of D.U.C.;

or 5) make D.U.C. available for adoption:

Court: Do you understand that at the dispositional phase of this case, I’ll consider all of

the evidence, . . . its possible that my decision

will be to terminate your parental rights and

then to make [D.U.C.] available for adoption

or . . . guardianship. It’s possible that my decision will be not to terminate your parental

rights . . . or still order . . . guardianship or order long term . . . foster care or placement

with a ﬁt and willing relative. Do you understand those are all possible outcomes of the

dispositional hearing?

Yes. R124-16. (Emphasis added.)

Based upon the court’s colloquy, Mom-T.R.C. understood that the disposition hearing truly would be “a bit

different” than a TPR trial and that she still had her

full ability to prove that she was a ﬁt parent and that

her parental rights should not be terminated. R103-23. Mom-T.R.C. did not hear the judge explain to her

that she was giving up her “constitutional rights” to

help keep her daughter, if she agreed to the no contest

plea. R103-3.

Mom-T.R.C. took the trial court’s words “a bit different” literally, believed them entirely, and then proceeded to subsequently do numerous actions to prove

her parental ﬁtness. These facts of Mom-T.R.C. making

such great effort to do numerous actions over the next

eleven months to prove her parental ﬁtness, directly

contradicts waiving of the very rights that would assist

her in achieving her family reuniﬁcation goal, prove

that Mom-T.R.C. did not knowingly, voluntarily, and intelligently waive her Constitutional rights to contest

allegations in the petition by signing a no contest plea.

The Decision on Remand Motion demonstrates

how drastic the difference was, because the second

judge would not hear medical testimony of Dr. Praveen

Goday, MD regarding the alleged “sickness” of D.U.C.:

The post remand motion . . . ignores . . . the

procedures for Disposition hearing set forth in

of Wisconsin Statutes Section 48.299 . . . even

if the testimony offered by both the case

manager and the foster parent at the Disposition hearing was opinion testimony, none

of the testimony required expert medical

knowledge. R99-2.

Since this testimony was something that anyone in the general population would be capable of observing and understanding, no

medical expert was needed to introduce the

testimony. . . . R99-4.

Wisconsin Statute Section 48.299 provides

that . . . the rules of evidence do not apply at

disposition hearings.13 R99-4.

. . . the State did not rely on a medical diagnosis, but rather on the fact that loose stools occurred regularly after visits. . . . R99-4.

The ﬁrst judge stated on the record, “I’ll consider

all of the evidence.” R124-16. However, when appellate

counsel brought Dr. Goday to court to testify, the court

would not hear Dr. Goday’s medical testimony R13424, which would have resolved the loose stools/

“sickness” issue, which was the sole barrier for reuniﬁcation as stated by caseworker Hintz. R132-86. Dr.

Goday’s medical testimony was relevant, material, had

reasonable probative value, and was highly favorable

to Mom-T.R.C.’s position. See Offer of Proof for Dr. Goday, R111.

So it was not “a bit different,” and “all of the evidence” was not considered, as the ﬁrst judge stated to

Mom-T.R.C. during the no-contest plea hearing. R12415-16.

Wis. Stat. 48.299(4)(b) Except as provided in s. 901.05,

neither common law nor statutory rules of evidence are binding

at . . . a dispositional hearing, . . . revision of dispositional orders, . . . . At those hearings, the court shall admit all testimony

having reasonable probative value. . . . The court shall apply the

basic principles of relevancy, materiality, and probative value to

proof of all questions of fact. Objections to evidentiary offers and

offers of proof of evidence not admitted may be made and shall be

noted in the record.

Mom-T.R.C.’s constitutional rights were violated

when the circuit court misinformed Mom-T.R.C. by describing a dispositional hearing as being “all of the evidence” considered and “a bit different” to a TPR trial

to Mom-T.R.C., which Mom-T.R.C. completely believed

to her detriment.

VI. The Guardian Ad Litem Was Compromised

Beyond Repair.

Constitutional rights and protections apply to minor children. In re Gault, 387 U.S. 1 (1967). DaughterD.U.C. has the fundamental constitutional right of familial integrity, and she wants to be reunited with

Mom-T.R.C., her brothers, her grandma, and her extended family.

The Wisconsin Supreme Court Rule 60 Preamble

explains that integrity of Wisconsin’s judicial system

requires that all of the parties of our legal system cannot be compromised.

SCR 60 Preamble. Our legal system is based

on the principle that an independent, fair and

competent judiciary will interpret and apply

the laws that govern us. The role of the judiciary is central to American concepts of justice

and the rule of law. Intrinsic to all provisions

of this Code are the precepts that judges, individually and collectively, must respect and

honor the judicial ofﬁce as a public trust and

strive to enhance and maintain conﬁdence in

our legal system. The judge is an arbiter of

facts and law for the resolution of disputes

and a highly visible symbol of government under the rule of law.

On or about November 19, 2018, Mom-T.R.C.’s appellate counsel subpoenaed the Afﬁdavit and Search

Warrant that supported the Search Warrant to seize

Assigned-GAL’s14 computer on or about August 2018.

The State told counsel that the file was sealed. R134-4.

On November 19, 2018, the day before the Second

Remand Motion hearing for this case, the District Attorney’s Ofﬁce revealed that the search warrant alleged that:

1) Authorities began investigating [Assigned-GAL] between April and July 2018 for

a “suspected child pornography incident.”

2) [Assigned-GAL] had “downloaded suspect

child pornography” on his docked laptop.

3) Authorities uncovered “966 web browsing

reports” that showed “almost every web

browsing search were pornographic related.”15

The State and new GAL do not dispute Assigned-GAL’s

secret activity of allegedly over 900 child pornography

viewings, allegedly happening during this case. R134-6.

See Footnote 7.

The search warrant is quoted in: Suzanne Spence, Former

County Lawyer Who Often Represented Kids Investigated For Allegedly Searching Child Porn, Fox 6 Milwaukee, November 19,

2018, https://fox6now.com/2018/11/19/former-county-lawyer-whooften-represented-kids-investigated-for-allegedly-searching-childporn/ (last visited September 2, 2019).

On November 20, 2018, a deputy district attorney

came to court to questionably explain why the district

attorney’s ofﬁce would not produce photocopies of its

search warrant and the underlying afﬁdavit requested

by the subpoena:

I contacted our downtown ofﬁce and was informed that the assistant DA who assisted or

approved the search warrant does not have [a]

ﬁnalized copy of the search warrant, . . . the

original is in the clerk’s ofﬁce. That information was provided by ADA Kiefer to Attorney Shaw earlier today once we learned that

it had – the seal, it was no longer under seal.

I did . . . reach out to our investigators to see

if they had a signed copy, but I have not heard

back . . . it was my understanding based on

the deputy district attorney . . . that our ofﬁce

is not in possession of a signed copy. R134-5.

As a result of the district attorney’s ofﬁce not

producing these subpoenaed documents, Mom-T.R.C.’s

appellate counsel had no underlying documents regarding Assigned-GAL’s actions. At the Second Postremand Motion hearing, Mom-T.R.C.’s appellate counsel

stated “we don’t know if any of the [porn] photos pertain to [D.U.C.] in this particular case,” and the State

and new GAL did not disagree. R134-8. Without knowing the contents of these documents, the court proceeded with the second postremand hearing.

Given this “very close to reuniﬁcation” case, the

State and Assigned-GAL advocated for the termination of parental rights of Mom-T.R.C. Assigned-GAL

acted as guardian ad litem for D.U.C. during the

no-contest plea and during the dispositional phase,

which resulted in the parental termination of MomT.R.C. from Daughter-D.U.C. when he was allegedly

compromised with a secret so dangerous to his freedom.

Wisconsin SCR 20:1.7 states:

. . . a lawyer shall not represent a client if the

representation involves a concurrent conﬂict

of interest.

The ABA comment [1] states:

Loyalty and independent judgment are essential elements in the lawyer’s relationship to a

client. . . .

The conﬂict in this case cannot be waived. The Assigned-GAL’s loyalty and independent judgment with

respect to his ability to represent the best interests of

a child are tainted by the ﬁnding of probable cause to

seize his computer for alleged child porn.

Assigned-GAL was appointed for D.U.C. for the appeal of this case, until he was quietly replaced in August, 2018. Neither the Court nor the State informed

Mom-T.R.C.’s appellate counsel of the reason why Assigned-GAL was replaced on this case.

The mere appearance of a predilection to child pornography by the Assigned-GAL in this “very close to

reunification” TPR case R132-84, where the AssignedGAL advocates to remove a child from a biological parent to give her up for adoption, taints this case.

Regardless of the secret contained on the computer, the Assigned-GAL compromised his independent judgment by holding this issue secret and knowing

that it could be discovered at any time. Any counsel

withholding a secret so signiﬁcant that the District Attorney’s ofﬁce has probable cause to get a search warrant to seize counsel’s computer is vulnerable to

blackmail and is compromised beyond repair regarding any signiﬁcant legal decision of grave consequence

for the minor ward.

The Assigned-GAL’s compromised status is beyond repair because this case has the “TPR family

death penalty” consequence of permanently ripping

away a little girl from her biological mother, brothers,

and grandmother for her entire childhood – all family

members who dearly love this little girl, which is undisputed. In order to protect the public conﬁdence in

our judicial system, D.U.C. must be returned to MomT.R.C. and her family.

------------------------------------------------------------------

CONCLUSION

For all of the foregoing reasons, Petitioner MomT.R.C. respectfully requests that this Court grant this

Petition or, in the alternative, provide a summary decision that reverses the underlying appellate decision.

Respectfully submitted,

ANDREW J. SHAW

Counsel of Record

MARION KOLLER SHAW

SHAW LAW OFFICES

6815 West Capitol Drive

Suite 115

Milwaukee, Wisconsin 53216

(414) 535-9626

shawlawofﬁces@gmail.com

Counsel for Petitioner

T.R.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.