COURT BLAMES COUNTY, LAW IN GIRL'S CASE

'Hypertechnical' rule means officials needed to warn her parents they may
be cut off

The state Court of Appeals faulted Waukesha County Wednesday for
botching a case in which a judge terminated a couple's parental rights
without providing advance written notice to both parents.

Also, the appellate court had harsh words for the stringent
requirements of the state law involved, urging the state Supreme Court
and the Legislature to review it.

The case involves the couple's daughter, Brittany, now 4, who was
born with various disabilities related to her mother's use of cocaine
during pregnancy.

Brittany has been in the care of foster parents since she was 9
months old. Her foster parents want to adopt her, according to court
records.

The Journal Sentinel is not naming the girl's parents because such
proceedings at the trial court-level are not open to the public. The
family's identity is not in the Appeals Court files.

As the case proceeded, the county tripped on the technicality and
failed to properly notify the father, who has been incarcerated for
most of the girl's life. As a result, the Appeals Court concluded, it
had no choice but to reverse Circuit Judge J. Mac Davis' order
terminating the parents' rights.

"This is an extremely unfortunate case," wrote Judge Richard Brown,
who drafted the appellate court's decision.

In "reluctantly" reversing the lower court ruling, the Appeals Court
criticized a "hypertechnicality" in the law that requires parents be
advised in writing that they could lose their parental rights each
time the county places a child outside the home.

In this case, Brittany was removed from her mother temporarily after
she was born in February 1995. Later, she was removed again in
November 1995 because her mother was again using crack cocaine.

Neither of those orders contained warnings to the parents that they
could lose their parental rights, although a March 1996 order
extending the placements did contain the required written warning.
That order also contained a list of conditions the parents would have
to meet to have the girl returned to their care, and both parents
also were given oral warnings by Davis during a court appearance
related to that order, court records show.

"The facts of this case demonstrate the folly of the hypertechnicality
(the law) requires," Brown wrote for the court. Because of that, "a
child remains in limbo. That, in this court's view, is tragic."

"This court urges the Supreme Court and the Legislature to consider
the result of this case," Brown wrote. "While (the law has been)
mentioned in cases, (it) has never been squarely reviewed by the
Supreme Court."

"The result here is especially grating considering how easily it could
have been avoided," Brown wrote. "Had the county added a paragraph (to
the placement order) explaining the possible termination of parental
rights, we would not be reversing today. . . . Now its failure to do
so means that it must start all over, costing Brittany precious time
in which she could have been adopted."

Waukesha County Corporation Counsel Thomas Farley took exception to
the court's harsh words. "This decision saddens me greatly," Farley
said.

"We disagree with the decision and believe it should be reversed. We
intend to immediately petition the Supreme Court to review it," Farley
said. "We further disagree with the court's criticism of the
department."

Farley said he disagreed with the court's determination that the law

requires written notice with each placement petition. "We really
believe the Supreme Court will review this (decision) and it will be
reversed."

However, the father's attorney, Thomas Voss, said the requirement for
written notice is there for a reason.

"The object in many of these Juvenile Court proceedings is to reunite
the family as quickly as possible," Voss said. "The notice that is
required is incentive to the parents to take positive steps to do what
needs to be done. When you delay that notice and let some time slip
past that the parents could have taken advantage of, you're stealing
an opportunity from the parents. You can't call that a technicality.
There's a reason for that requirement."

Voss said he was pleased with the ruling "but not with the commentary"
of the decision.

Voss would not say whether the girl's father is still incarcerated,
but when asked whether the father is in a position to care for the
girl, Voss said, "He will be in not too long of time. I think he's
intelligent enough to know what he has to do to put himself in a
position to care for the child. Emotionally, he has some very strong
feelings about wanting to be able to do that."