Eau Claire County Department of Human Services v. S. E.

2020 WI App 39COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2019AP894
†Petition for Review filed
Complete Title of Case:
IN RE THE TERMINATION OF PARENTAL RIGHTS TO T. L. E.-C.,
A PERSON UNDER THE AGE OF 18:
EAU CLAIRE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
S. E.,
†RESPONDENT-APPELLANT.
Opinion Filed: May 13, 2020
Submitted on Briefs: September 18, 2019
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Thomas B. Aquino, assistant public defender of Madison.
Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Sharon G. McIlquham, assistant corporation counsel,
Eau Claire.
2020 WI App 39COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 13, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP894 Cir. Ct. No. 2018TP10
STATE OF WISCONSIN IN COURT OF APPEALS
IN RE THE TERMINATION OF PARENTAL RIGHTS TO T. L. E.-C.,
A PERSON UNDER THE AGE OF 18:
EAU CLAIRE COUNTY DEPARTMENT OF HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
S. E.,
RESPONDENT-APPELLANT.
APPEAL from order of the circuit court for Eau Claire County:
EMILY M. LONG, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
No. 2019AP894
¶1 HRUZ, J. Sophie1 appeals a nonfinal order in this termination of
parental rights (TPR) case.2 That order denied Sophie’s motion asking the circuit
court to determine that the Eau Claire County Department of Human Services (the
Department) must prove the elements of the continuing CHIPS ground for a TPR as
previously set forth in WIS. STAT. § 48.415(2)(a) (2015-16), as opposed to the
elements now set forth in § 48.415(2)(a) (2017-18).3
¶2 In June 2016, Sophie’s son, Tyler, was placed outside of her home.
In August 2016, the circuit court entered a CHIPS order, and Tyler’s placement
continued with the issuance of subsequent CHIPS orders. At the initial out-of-home
placement hearing and at four subsequent permanency plan review hearings, the
court, as required by statute, gave Sophie written and oral notice that her parental
rights could be terminated pursuant to the continuing CHIPS ground. As relevant
here, that ground previously required the Department to prove there was a
substantial likelihood that Sophie would not meet the conditions established for the
return of Tyler to her home within nine months following a TPR fact-finding
hearing. See WIS. STAT. § 48.415(2)(a)3. (2015-16).
1
For ease of reading, we refer to S.E. and her son, T.L.E.-C., using pseudonyms, rather
than by their initials.
2
By this court’s June 26, 2019 order, we granted Sophie leave to appeal a nonfinal order.
See WIS. STAT. § 808.03(2) (2017-18). This appeal was converted from a one-judge appeal to a
three-judge appeal by the December 16, 2019 order of the Chief Judge of the Court of Appeals.
See WIS. STAT. § 752.31(3) (2017-18); WIS. STAT. RULE 809.41(3) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
3
We follow the lead of the parties and prior case law by referring to WIS. STAT.
§ 48.415(2)(a) as the “continuing CHIPS” ground for the termination of parental rights. See, e.g.,
St. Croix Cty. DHHS v. Michael D., 2016 WI 35, ¶1, 368 Wis. 2d 170, 880 N.W.2d 107. “CHIPS”
is a commonly used acronym for “child in need of protection or services.” See id., ¶6. Also, for
ease of reading and consistency with prior case law, we refer to WIS. STAT. § 48.415(2)(a) (2015-
16) as the “prior version,” and to § 48.415(2)(a) (2017-18) as the “amended version.” See Dane
Cty. DHS v. J.R., 2020 WI App 5, ¶2 n.3, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).
2
No. 2019AP894
¶3 Our legislature changed the continuing CHIPS ground’s elements in
April 2018 when it passed 2017 Wis. Act 256, § 1, which amended WIS. STAT.
§ 48.415(2)(a)3. (2015-16). The amended version eliminated a prospective analysis
under the continuing CHIPS ground for a TPR if the child had already been placed
outside the parent’s home for at least “15 out of the most recent 22 months.”
Compare § 48.415(2)(a)3. (2015-16), with § 48.415(2)(a)3. (2017-18). A few
months after the amendment took effect, the Department petitioned to terminate
Sophie’s parental rights based on the continuing CHIPS ground. The petition stated
the continuing CHIPS elements set forth by the amended version of the statute.
¶4 Sophie asserts the amended version of WIS. STAT. § 48.415(2)(a)
should not be used as a basis to terminate her parental rights because the notice she
was given when the CHIPS orders were first issued included the continuing CHIPS
elements set forth in the prior version of the statute. For the reasons set forth, we
disagree. In Sophie’s TPR proceedings, the circuit court must employ the current,
amended version of § 48.415(2)(a). We also disagree with Sophie that applying the
amended version of the statute to her circumstances violates her constitutional rights
to due process. We therefore affirm the order of the circuit court.
BACKGROUND
¶5 The following facts are undisputed. In June 2016, then-three-year-old
Tyler was removed from Sophie’s home pursuant to a temporary physical custody
order. On August 17, 2016, Tyler was found to be a child in need of protection or
services. Written notice of potential grounds for termination of Sophie’s parental
rights was provided to her with that CHIPS order, as required by WIS. STAT. §
48.356(2). Presumably, the CHIPS order listed continuing CHIPS as one of the
3
No. 2019AP894
potential TPR grounds.4 Effective April 6, 2018, the legislature changed one of the
elements of the continuing CHIPS ground by amending WIS. STAT. § 48.415(2)(a)3.
See 2017 Wis. Act 256, § 1. This change is explained further below.
¶6 In June 2018, the Department petitioned for involuntary termination
of Sophie’s parental rights to Tyler, alleging the ground of abandonment. In
September 2018, the Department filed an amended TPR petition, alleging two
grounds for termination: (1) abandonment; and (2) continuing CHIPS. See WIS.
STAT. § 48.415(1)(a)2., (2)(a). Both parties appear to agree that another CHIPS
order was issued in October 2018 that included TPR warnings referring to the
amended version of WIS. STAT. § 48.415(2)(a), although that order is not in the
appellate record.
¶7 In April 2019, prior to a trial in the grounds phase, the parties disputed
whether the TPR case should proceed under the prior or the amended version of the
continuing CHIPS statute. Sophie argued that the prior version should apply,
whereas the Department and Tyler’s guardian ad litem argued in favor of the
4
Both parties agree that Sophie received the TPR warnings as required by statute in 2016,
but neither the August 2016 nor subsequent CHIPS orders are in the record on appeal. While the
CHIPS orders would have aided our review of this case, their absence does not foreclose our review
of the issues on appeal.
We further note that the Department’s statement of the case in its response brief has only
one citation to the appellate record. The Department’s violations of WIS. STAT.
RULES 809.19(1)(d) and 809.19(3)(a)2. are problematic and have unnecessarily hindered our
review of Sophie’s appeal. In addition, the Department’s brief refers repeatedly to matters in the
CHIPS action involving Sophie, even though most records of the CHIPS action are not part of the
appellate record in this TPR action. These omissions further violate RULES 809.19(1)(d) and
809.19(3)(a)2. We admonish the Department that future violations of the rules of appellate
procedure may result in sanctions.
4
No. 2019AP894
amended version. On May 6, 2019, the circuit court determined that the case would
proceed under the amended version. Sophie now appeals.5
DISCUSSION
¶8 When our legislature amended WIS. STAT. § 48.415(2)(a)3. in April
2018, it changed the elements that the Department must prove at the grounds phase
of a TPR proceeding. The prior version of subdivision 3. required the petitioner to
show, among other things, that there was a “substantial likelihood” that the parent
would not meet “the conditions established for the safe return of the child to the
home” within “the 9-month period following the fact-finding hearing.” We have
previously referred to this requirement, which assesses the prospective likelihood
of the child’s return, as the “9-month failure to meet requirement.” See Dane Cty.
DHS v. J.R., 2020 WI App 5, ¶13, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).
¶9 Our legislature eliminated the 9-month failure to meet requirement
when it amended WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1.
Subdivision 3. now provides:
[I]f the child has been placed outside the home for less than
15 of the most recent 22 months, [the petitioner must show]
that there is a substantial likelihood that the parent will not
meet the[] conditions [established for the safe return of the
child to the parent’s home] as of the date on which the child
will have been placed outside the home for 15 of the most
recent 22 months, not including any period during which the
child was a runaway from the out-of-home placement or was
residing in a trial reunification home.
5
After briefing concluded in this matter, we issued our decision in J.R. That decision was
not initially recommended for publication, but it has since been published. Sophie submitted a
letter, consistent with WIS. STAT. RULE 809.19(10), asserting, among other things, that the “facts
and holdings” of J.R. are distinct from the issues in her case.
5
No. 2019AP894
Sec. 48.415(2)(a)3. Following Sophie’s lead, we generally refer to this “amended”
period as the “15-out-of-22-month timeframe.”
¶10 Sophie does not request dismissal of the TPR petition altogether.
Instead, she argues the Department should not be able to rely on the amended
version of WIS. STAT. § 48.415(2)(a) to terminate her parental rights.6 Rather, she
contends the Department should proceed under the prior, 9-month failure to meet
requirement. Sophie generally makes three different arguments in this regard. She
argues, first, that use of the amended version would be an impermissible retroactive
application of the statute, and, second, that such an application would violate her
due process rights. Third, she argues, as a matter of statutory construction, that if
the amended statute applies in her TPR proceeding, the 15-out-of-22-month
6
In her supplemental letter to this court addressing J.R., Sophie “clarifie[d] that she is not
arguing that the [Department] must have pursued a TPR under the old law, but that it could have.”
She faults the Department for waiting until WIS. STAT. § 48.415(2)(a)3. was amended in April 2018
before petitioning for a TPR when the Department’s “cause of action accrued in February of 2017,”
and she contends “that the cause of action survived the April 2018 amendments” under WIS. STAT.
§ 990.04. This “clarification” is problematic for a few reasons.
First, if Sophie intended her clarification only to bolster an argument as to why WIS. STAT.
§ 990.04 applies in her case, that argument is developed for the first time outside of her brief-in-
chief, and it is minimally developed at best. We generally do not consider such arguments. See
A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998).
Additionally, we previously decided in J.R. that § 990.04 does not require application of the prior
version of WIS. STAT. § 48.415(2)(a). J.R., 390 Wis. 2d 326, ¶¶19-27. For reasons explained
further in this opinion, we disagree with Sophie’s assertion that material distinctions exist between
her case and the parent in J.R.
Second, if Sophie intended her clarification to more generally bolster her appellate
arguments regarding the validity of the circuit court’s use of the amended version of the statute, the
clarification is inconsistent with her arguments in her appellate briefs. In those briefs, Sophie
repeatedly advocates that the Department “must” have pursued a TPR under the prior version of
WIS. STAT. § 48.415(2)(a). In any event, whether Sophie is arguing that the Department must have,
could have, or should have pursued a TPR under the prior version of the statute is immaterial
because, for the reasons set forth in our opinion, we reject all of Sophie’s arguments.
6
No. 2019AP894
timeframe period can only begin with a CHIPS order including notice of that time
period limitation. We addressed the first two issues she raises in our recent decision
in J.R., and we begin with those arguments.7
I. Retroactivity
¶11 Sophie makes two separate, but related, arguments asserting that if the
amended version of WIS. STAT. § 48.415(2)(a) were employed, it would be an
impermissible retroactive application of the statute. She maintains that as a matter
of statutory interpretation, statutes must be “construed to avoid retroactive
application of a substantive change in the law.” Here, she contends the amended
version would impair her right to parent her child—which she contends is a vested
right. Relatedly, Sophie also argues that a retroactive application of the amended
version would violate her rights to due process because it would deprive her of a
constitutionally protected right to parent her child without “fair notice.”
¶12 The critical question, therefore, is whether employing the amended
version of WIS. STAT. § 48.415(2)(a) in the current posture of Sophie’s TPR case is
actually a retroactive application of that statute. The interpretation and application
of a statute present questions of law that we review de novo. Brown Cty. Human
Servs. v. B.P., 2019 WI App 18, ¶10, 386 Wis. 2d 557, 927 N.W.2d 560. Similarly,
we review de novo whether a legislative act violates due process. Neiman v.
American Nat’l Prop. & Cas. Co., 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d
160; see also J.R., 390 Wis. 2d 326, ¶51 (“Whether a statute, as applied, violates
7
We wish to make clear that we offer no opinion on whether the Department has proven
the continuing CHIPS ground in this case; that role is for the fact finder at the grounds phase of
Sophie’s TPR proceedings. See Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255
Wis. 2d 170, 648 N.W.2d 402. This interlocutory appeal occurred prior to the trial in the grounds
phase and concerns only the statutory standard that must be applied in any ensuing trial.
7
No. 2019AP894
the challenger’s constitutional rights is a question of law this court reviews de
novo.”).
¶13 Sophie’s arguments are nearly identical to those raised by the parent
in J.R. Similar to Sophie, J.R.’s children were placed outside of his home pursuant
to CHIPS orders that were issued before the legislature amended WIS. STAT.
§ 48.415(2)(a). See J.R., 390 Wis. 2d 326, ¶5. After the amended version went into
effect, the Dane County Department of Human Services petitioned for an order
terminating J.R.’s parental rights to his children. Id., ¶7. On appeal, J.R. argued
that if the amended version was utilized during his TPR proceedings, it would
constitute a retroactive application of that statute and thereby violate his due process
rights. Id., ¶¶28-30. We explained that courts use a two-step test to determine
whether a statute operates retroactively. See id., ¶30.
¶14 Relevant to Sophie’s arguments in this case, the second step of the
retroactivity analysis requires us to determine whether the amended version of WIS.
STAT. § 48.415(2)(a) does, in fact, operate retroactively, notwithstanding the
absence of any legislative directive regarding retroactivity. J.R., 390 Wis. 2d 326,
¶¶32, 44. We concluded the application of the amended version of § 48.415(2)(a)
in a TPR case was not retroactive when CHIPS proceedings began before the
legislature amended the continuing CHIPS ground.8 J.R., 390 Wis. 2d 326, ¶¶30-
32, 41, 44, 50.
8
Sophie appears to misunderstand when a statute truly operates “retroactively.” It is true
that the facts underlying the continuing CHIPS ground are based on Sophie’s conduct that occurred
before the legislature amended WIS. STAT. § 48.415(2)(a)3. A statute does not, however, operate
retroactively “simply because it is applied in a case arising from conduct antedating the statute’s
enactment.” J.R., 390 Wis. 2d 326, ¶44 (citation omitted). Merely because Sophie labels the
application of the amended statute in this case as “retroactive” does not make it so.
8
No. 2019AP894
¶15 Sophie also argues the amended version of WIS. STAT. § 48.415(2)(a)
operates retroactively because she has a “fundamental right to parent” her child, and
if the amended version of § 48.415(2)(a) is used in her case, its “retroactive
application would impair [her] vested rights.” This argument, however, was
addressed in—and now foreclosed by—our decision in J.R., the relevant facts of
which are not materially different than here, including on the issue of the effect on
one’s parental rights.9 We are generally bound by our own published precedent.
See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). Given our
binding precedent in J.R., we therefore reject Sophie’s claim that using the amended
version of § 48.415(2)(a) would impermissibly make the statute operate
retroactively.
II. Additional Due Process Arguments
¶16 Sophie argues the purported “retroactive application” of the amended
version of WIS. STAT. § 48.415(2)(a) in her TPR proceedings “violates [her] due
process rights” in other ways. In doing so, Sophie makes an “as-applied” due
process challenge, maintaining that if the amended version of § 48.415(2)(a) is used,
9
Specifically, in J.R., we called into question the same premise Sophie now advances—
i.e., that the “fundamental liberty interest” of a parent “is the same” as a “vested right” regardless
of the existing relationship between the parent and child. See J.R., 390 Wis. 2d 326, ¶48 (citing
Tammy W-G. v. Jacob T., 2011 WI 30, ¶52, 333 Wis. 2d 273, 797 N.W.2d 854 (“Parents who have
developed a relationship with their children have a fundamental liberty interest in the ‘care,
custody, and control of their children.’” (emphasis added and citation omitted)); and Monroe Cty.
DHS v. Kelli B., 2004 WI 48, ¶23, 271 Wis. 2d 51, 678 N.W.2d 831 (holding that a parent with a
“substantial relationship” with his or her child has a “fundamental liberty interest” in parenting)).
Similar to J.R., Sophie does no more than assume that her recognized fundamental liberty interest
as a parent is the same as a “vested right,” regardless of the underlying fact that her child had been
removed from her home and found to be in need of protection or services.
9
No. 2019AP894
she would be subject to fundamentally unfair procedures, including the lack of fair
notice.10
¶17 Due process is implicated in TPR proceedings because when “the
State moves to destroy weakened familial bonds, it must provide parents with
fundamentally fair procedures.” Steven V. v. Kelley H., 2004 WI 47, ¶23, 271
Wis. 2d 1, 678 N.W.2d 856 (quoting Santosky v. Kramer, 455 U.S. 745, 753-54
(1982)). The State provides fundamentally fair procedures by providing parents a
hearing, prescribing the petitioner’s burden of proof as “clear and convincing
evidence,” id., and providing fair notice of any substantive change to a parent’s
conduct that could lead to a TPR, see State v. Patricia A.P., 195 Wis. 2d 855, 863,
537 N.W.2d 47 (Ct. App. 1995).
¶18 As was the case with the parent in J.R., Sophie’s as-applied due
process challenge is premised on—and derivative of—her contention that the
amended version of WIS. STAT. § 48.415(2)(a) has retroactive application to her
TPR proceedings. See J.R., 390 Wis. 2d 326, ¶52. As just explained, this court has
already concluded that applying the amended version to Sophie’s case is not an
improper retroactive application of the statute.
¶19 Further, J.R.’s rejection of the parent’s as-applied challenge in that
case is binding precedent here because there are no material factual differences
between Sophie and J.R. Both parents had children placed outside of their
10
WISCONSIN STAT. § 893.825(1) and (2) require that when a statute is alleged to be
unconstitutional, the attorney general, speaker of the assembly, president of the senate and senate
majority leader shall be served with a “copy of the proceeding,” and the attorney general, assembly,
senate, and joint committee on legislative organization shall be entitled to be heard in that action.
The effective date of § 893.825 was December 16, 2018, which was after the Department petitioned
to terminate Sophie’s parental rights. See 2017 Wis. Act 369, § 101. Nonetheless, Sophie provided
a copy of her brief-in-chief to those entities, and none of them entered an appearance in the matter.
10
No. 2019AP894
respective homes pursuant to CHIPS orders issued before the legislature amended
WIS. STAT. § 48.415(2)(a). See J.R., 390 Wis. 2d 326, ¶5. Those CHIPS orders and
subsequent CHIPS orders continuing the children’s placement outside of the home
each contained the required written notice of potential grounds for a TPR. See id.The CHIPS orders J.R. received before § 48.415(2)(a) was amended had listed
continuing CHIPS, generally, as a potential ground for TPR, J.R., 390 Wis. 2d 326,
¶5, and there is nothing in the record indicating—nor does Sophie claim—that
something different occurred in her case. Likewise, CHIPS orders were issued in
both cases after the amended statute went into effect, and those orders included
notice of the amended continuing CHIPS ground.11 See id., ¶6. The respective
petitioners in each case petitioned for TPR after the legislature amended
§ 48.415(2)(a)3., ultimately alleging continuing CHIPS as a ground for TPR. See
J.R., 390 Wis. 2d 326, ¶5. In all, we conclude our holding in J.R. that the
application of the amended version of § 48.415(2)(a) did not violate J.R.’s due
11
In Sophie’s supplemental letter to this court, she contends she “has a much stronger due
process notice argument than J.R.” because the first CHIPS order that gave her notice of the
amended continuing CHIPS ground and its corresponding statutory elements was issued after the
Department petitioned to terminate her parental rights. Conversely, in J.R.’s case, CHIPS orders
were issued with the updated warnings in before Dane County initiated TPR proceedings. J.R.,
390 Wis. 2d 326, ¶6.
Sophie’s argument is unpersuasive because she does not explain why this distinction makes
a difference. In any event, we also disagree that she has a “stronger” due process challenge under
her factual circumstances, primarily because there is not a substantial change in the type of conduct
that may lead to a TPR between the prior version and the amended version of WIS. STAT.
§ 48.415(2)(a)3. What matters is that the child has been placed outside of the home in need of
protection or services for an extended period of time. See infra, ¶¶22-23.
11
No. 2019AP894
process rights applies with equal force to Sophie.12 See J.R., 390 Wis. 2d 326, ¶¶51-
52. Her due process arguments therefore lack merit.
¶20 Although our decision in J.R. is arguably dispositive of Sophie’s due
process argument, we address an argument she raises regarding due process that J.R.
did not. Sophie argues that applying the amended version of WIS. STAT.
§ 48.415(2)(a)3. violates her right to procedural due process under our decision in
Patricia A.P. In that case, we held that when a parent is warned his or her parental
rights to a child may be lost because of the parent’s future conduct, “if the State
substantially changes the type of conduct that may lead to the loss of rights without
notice to the parent, the State applies a fundamentally unfair procedure.” Patricia
A.P., 195 Wis. 2d at 863 (emphasis added). Sophie contends such a “substantial
change” occurred here and she was not given “fair notice” of that substantial change.
We disagree.
¶21 In Patricia A.P., we observed that the legislature changed the “quality
of the very nature of the acts leading to termination.” Id. at 864 (emphasis added).
12
In J.R., we observed that one of the flaws in J.R.’s arguments was that he did not show
that Dane County would “be able to establish the continuing CHIPS ground in the TPR proceeding
under the amended version of [WIS. STAT.] § 48.415(2)(a)3. but not under the prior version.” J.R.,
390 Wis. 2d 326, ¶53. The same holds true for Sophie here.
Sophie alleges that “applying the new version of [WIS. STAT.] § 48.415(2)(a)3. to [her] and
parents like her whose children were placed out of home under CHIPS orders entered prior to the
enactment of the new statute violates procedural due process” and that she had a “settled
expectation that she would be able to present argument as to the 9-month-forward-looking element
should the government attempt to terminate her rights.” However, Sophie presents no facts
demonstrating that the Department is able to meet its burden of proof under the amended version
of § 48.415(2)(a) but could not do so under the prior version. See J.R., 390 Wis. 2d 326, ¶53.
Sophie consequently “has not demonstrated that application of the prior version
of … § 48.415(2)(a), as compared to application of the amended version of § 48.415(2)(a) would
make a difference” to the result in her TPR proceedings. See J.R., 390 Wis. 2d 326, ¶53 (citing
Society Ins. v. LIRC, 2010 WI 68, ¶27 n.9, 326 Wis. 2d 444, 786 N.W.2d 385; and State v. Wood,
2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63).
12
No. 2019AP894
The old version of the continuing CHIPS ground at issue in that case provided that
a parent would lose his or her parental rights “only for culpable conduct—
substantial neglect or willful refusal—or for inability to meet the conditions
established for the return of the child.” Id. (citing WIS. STAT. § 48.415(2)(c) (1991-
92)). The new version, by contrast, required “no showing of neglect, willfulness or
inability.” Id. Instead, a parent faced termination of rights if he or she “failed to
demonstrate substantial progress toward meeting the conditions established for the
return of the child.” Id. (quoting WIS. STAT. § 48.415(2)(c) (1993-94)).
¶22 Here, the legislature’s amendment of WIS. STAT. § 48.415(2)(a)3. did
not substantially change the type of conduct that may lead to a TPR under
para. (2)(a). Similarly, the amended version of the statute did not change the
“quality of the very nature of the acts” that could lead to the termination of Sophie’s
parental rights. See Patricia A.P., 195 Wis. 2d at 864. Both versions of the statute
relate to circumstances involving: (1) a child in need of protection or services being
placed outside of the parent’s home for an extended period of time; (2) the
responsible agency having made a reasonable effort to provide the services ordered;
and (3) the parent’s ability to meet the conditions for the child’s return. Compare
§ 48.415(2)(a) (2015-16), with § 48.415(2)(a) (2017-18). That the amended version
narrowed the scenarios by which a parent must progress toward meeting conditions
of return does not change the fact that these are the three circumstances subjecting
a parent to a TPR based on continuing CHIPS.
¶23 In other words, the change between the prior version and the amended
version of the statute is not substantive, including in the sense articulated in Patricia
13
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A.P.13 Whereas the prior version required a prospective determination of whether a
parent was likely to meet the conditions for return of the child within the nine
months following the fact-finding hearing, the amended version eliminates the need
for a prospective analysis as long as the child has already been outside the parent’s
home for “15 of the most recent 22 months.” Compare WIS. STAT. § 48.415(2)(a)3.
(2015-16), with § 48.415(2)(a)3. (2017-18). In cases where the out-of-home
placement has already satisfied the 15-out-of-22-month timeframe, the amended
statute merely requires the petitioner to prove that the parent has failed to meet the
conditions for the safe return of the child. See § 48.415(2)(a)3. (2017-18). Under
both versions of the statute, however, the conduct at issue is the same—the parent’s
ability or inability to meet the conditions for return of the child during an extended
period of time—and, under both versions, the child must have been placed outside
of the parent’s home for at least six months. Thus, the legislature’s amendment of
§ 48.415(2)(a)3. did not substantially change the type of conduct that may lead to
the termination of Sophie’s parental rights.
¶24 Relatedly, Sophie also argues—vaguely and without citation to
authority—that the change between the prior and the amended version of WIS. STAT.
§ 48.415(2)(a)3. violated her procedural due process right to “fair notice” because
she “had a settled expectation that she would be able to present argument as to the
9-month forward-looking element should the government attempt to terminate her
rights.” In other words, Sophie maintains that even if Tyler has already long been
13
Notably, we observe that this change makes the amended version of WIS. STAT.
§ 48.415(2)(a)3. mirror the procedural timeframe in WIS. STAT. § 48.417(1)(a), which provides that
a state or county actor is required to file a TPR petition regarding a child who has been placed
outside the home pursuant to a CHIPS order “for 15 of the most recent 22 months.”
14
No. 2019AP894
outside of her home, she still must have some time to remedy her failures to secure
his return after the Department filed the TPR petition.
¶25 Sophie’s argument lacks merit because she has not shown that her
“settled expectation” to make or prove a particular argument is, in fact, a due process
right. As best we can discern, her argument in this regard is dependent on her
foregoing attempted application of Patricia A.P. to her circumstances, which we
have just rejected. In short, Sophie has no due process right to have her parental
rights terminated under a particular set of elements that satisfies the TPR ground of
continuing CHIPS.14
III. Statutory Interpretation
¶26 Finally, Sophie raises a statutory interpretation argument we did not
address in J.R. and that is distinct from her retroactivity and due process arguments.
She asserts that under the plain meaning of the amended version of WIS. STAT.
§ 48.415(2)(a)3., “the 15-out-of-22 month timeframe begins with the CHIPS order
including the 15-out-of-22 month warning, not a prior order that does not include
the warning.”
¶27 Relevant to this case, the circuit court issued a CHIPS order in August
2016, and that order included TPR warnings referencing the prior version of WIS.
STAT. § 48.415(2)(a). After the legislature amended the continuing CHIPS ground
in April 2018, the Department filed an amended TPR petition alleging continuing
14
In J.R., we observed that J.R. had not explained “how or why the changes made in the
amended version of the statute, in themselves, take away his purported right to parent.” J.R., 390
Wis. 2d 326, ¶49. That comment applies with equal force here. The critical point is that, at all
times, Tyler was lawfully found to be a child in need of protection or services, and each CHIPS
order properly provided Sophie with written notice of that circumstance being a potential ground
for the termination of her parental rights, as that ground’s elements were prescribed by statute when
the CHIPS order was issued.
15
No. 2019AP894
CHIPS in September 2018. Then, in October 2018, the court issued a new CHIPS
order that included TPR warnings referencing the amended version of
§ 48.415(2)(a) and the elements that the Department needed to prove under that
version. In Sophie’s view of the relevant statutory provisions, the “15-out-of-22-
month timeframe cannot begin with the August 2016 CHIPS order,” but, rather,
must begin in October 2018 when a CHIPS order was first issued including the TPR
warnings referencing the amended version of the statute.
¶28 Our canons of statutory interpretation are well known and need not be
repeated here. See, e.g., B.P., 386 Wis. 2d 557, ¶10 (citing State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶¶44-49, 271 Wis. 2d 633, 681 N.W.2d
110). As relevant to Sophie’s arguments, however, we note that we give statutory
language its common, ordinary and accepted meaning, and we cannot read language
into a statute that does not exist in the statute’s text. See id.¶29 The plain meaning of the amended version of WIS. STAT.
§ 48.415(2)(a) permits its use as a ground for termination in Sophie’s circumstances.
In particular, § 48.415(2)(a)3.’s language does not support Sophie’s interpretation
that the 15-out-of-22-month timeframe could not have begun at the issuance of the
August 2016 CHIPS order.
¶30 As relevant to Sophie’s arguments, the amended version of the statute
provides that the continuing CHIPS ground “shall be established” if the Department
can prove:
1. That the child has been adjudged to be a child … in need
of protection or services and placed, or continued in a
placement, outside his or her home pursuant to one or more
court orders … containing the notice required by
s. 48.356(2) ….
….
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No. 2019AP894
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., not including time spent outside
the home as an unborn child; 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, not including any period during which the child was
a runaway from the out-of-home placement or was residing
in a trial reunification home.
WIS. STAT. § 48.415(2)(a)1., 3. Subdivision 3. requires the Department to prove
that a child has been placed outside of his or her parent’s home pursuant to an order
listed in subdivision 1., and one of those enumerated orders is a CHIPS order. There
is no dispute that such placement occurred in this case.
¶31 WISCONSIN STAT. § 48.415(2)(a)1., in turn, requires that the CHIPS
order contain the “notice” required by WIS. STAT. § 48.356(2), a subsection of the
CHIPS proceedings provisions within the Children’s Code. Section 48.356(2) must
be read in conjunction with § 48.356(1), and together they state:
(1) Whenever the court orders a child to be placed outside
his or her home, … the court shall orally inform the parent
or parents who appear in court … of any grounds for
termination of parental rights under s. 48.415 which may be
applicable and of the conditions necessary for the child … to
be returned to the home or for the parent to be granted
visitation.
(2) In addition to the notice required under sub. (1), any
written order which places a child … outside the home or
denies visitation under sub. (1) shall notify the parent or
parents … of the information specified under sub. (1).
¶32 Reading WIS. STAT. § 48.356 in conjunction with WIS. STAT.
§ 48.415(2)(a)1. and 3., the plain meaning of these statutory provisions permits use
of the amended version of § 48.415(2)(a) in Sophie’s TPR proceedings. Nothing
17
No. 2019AP894
within §§ 48.356 or 48.415(2)(a) prohibits a TPR petitioner from relying on a
CHIPS order issued before the legislature amended § 48.415(2)(a)3., regardless of
the nature of the continuing CHIPS warnings regarding a potential TPR contained
in that order. What matters is the parent having been warned that his or her parental
rights could be terminated on the basis of a continuing CHIPS—a child being
protectively placed outside of the parent’s home for an extended period of time.
¶33 To explain, what the continuing CHIPS ground requires, under either
the prior or amended version of the statute, is a valid CHIPS order having been
issued under the CHIPS statutes and in compliance with the “duty of court to warn”
provisions found in WIS. STAT. § 48.356. Once proof of these requirements has
been satisfied, the fact finder then independently assesses whether the petitioner has
proven the remaining statutory elements for a TPR due to a continuing CHIPS.15
The amended version of WIS. STAT. § 48.415(2)(a) contains no language prohibiting
a TPR petitioner from relying on a valid CHIPS order issued before the amended
version’s effective date when attempting to prove the continuing CHIPS ground
during the grounds phase of a TPR proceeding.
¶34 Sophie argues the references in WIS. STAT. § 48.415(2)(a)1. and 3. to
WIS. STAT. § 48.356’s “duty of court to warn” provision “provide[] that the initial
15
That means the fact finder must generally determine: (1) whether the agency
responsible for the child’s care has made a “reasonable effort” to provide the services ordered by
the circuit court, see WIS. STAT. § 48.415(2)(a)2.b.; (2) the parent “has failed” to meet the
conditions established for the child’s safe return, see § 48.415(2)(a)3.; (3) the child “has been
placed outside the home for a cumulative total period of 6 months or longer,” id.; (4) whether the
child has been placed outside the home “for less than 15 of the most recent 22 months,” id.; and (5)
if the child has been placed outside the home “for less than 15 out of the most recent 22 months,”
whether there is a “substantial likelihood” the parent will not meet the conditions for the child’s
return as of the date on which the child will have been placed outside the home “for 15 out of the
most recent 22 months,” id. Given that it appears undisputed Tyler had been already placed outside
of the home for more than “15 out of the most recent 22 months” by the time the Department filed
the TPR petition, it appears only the first and second elements described above may be in dispute.
18
No. 2019AP894
6[-]month waiting period begins with an order including the 15-out-of-22-month
notice” and, therefore, a CHIPS order “that does not include this ‘ground[] for
termination’ does not have the notice required of an order under Subdivision 1.”
Sophie’s argument lacks merit for a few reasons.
¶35 To begin, she confuses a TPR ground with its corresponding elements.
“Section 48.415(2) makes the written notice in the CHIPS statute, WIS. STAT.
§ 48.356(2), an element to prove in a TPR case grounded in continuing CHIPS to
ensure that a parent whose rights are being terminated has—at least once—received
written notice to that effect.” See St. Croix Cty. DHHS v. Michael D., 2016 WI 35,
¶17, 368 Wis. 2d 170, 880 N.W.2d 107. The 15-out-of-22-month timeframe,
however, is not one of the twelve TPR grounds provided by statute; rather, it is one
of the elements a petitioner must prove if it alleges a parent’s rights should be
terminated under para. (a) of the continuing CHIPS ground for a TPR.
¶36 Again, WIS. STAT. §§ 48.356 and 48.415(2)(a) require only that a
parent be given notice of which TPR grounds may be used to terminate his or her
parental rights. Section 48.415 enumerates only twelve grounds for TPR. See WIS.
STAT. § 48.415(1)-(10). Each ground, in turn, has elements “that shall be
established” by the petitioning party, id., but these elements are not the TPR grounds
themselves.16 Accordingly, for Sophie’s argument to be correct, she must read
16
To be sure, the duty to warn prescribed by WIS. STAT. § 48.356—which we
acknowledge includes the requirement that the parent be informed “of the conditions necessary for
the child … to be returned to the home”—serves a necessary function within TPR proceedings.
But the duty to warn is not an element of the continuing CHIPS ground beyond the fact that the
applicable CHIPS order(s) must have contained such a warning. See WIS. STAT. § 48.415(2)(a)1.
A parent’s notification of the conditions for return of the child and the grounds under which his or
her parental rights might be subject to termination dictate the validity of the CHIPS order itself and
of the CHIPS proceedings. The notice given under the duty-to-warn provision does not, in and of
itself, limit the ability for a petitioner to rely on a particular set of elements for the continuing
CHIPS ground.
19
No. 2019AP894
language requiring notice of a particular TPR ground’s elements into the statutes,
which contravenes a cardinal rule of statutory interpretation. See State v. Hinkle,
2019 WI 96, ¶24, 389 Wis. 2d 1, 935 N.W.2d 271.
¶37 Sophie also conflates the petitioner’s and the circuit court’s
procedural obligations under the TPR statute with the substantive elements a
petitioner must prove. As we previously explained, due process requires that when
“the State moves to destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures.” Steven V., 271 Wis. 2d 1, ¶23 (quoting
Santosky, 455 U.S. at 753-54). These procedures include providing a hearing,
prescribing a petitioner’s burden of proof as “clear and convincing evidence,” id.,and providing fair notice of any substantive change to a parent’s conduct that could
lead to a TPR, see Patricia A.P., 195 Wis. 2d at 863. Outside of providing these
procedures, however, the legislature unquestionably has the prerogative to
determine the grounds of unfitness upon which to initiate TPR proceedings. See
supra, ¶¶24-25; cf. Brown Cty. v. Shannon R., 2005 WI 60, ¶60, 286 Wis. 2d 278,
706 N.W.2d 269 (“The State has an urgent interest in a termination of parental rights
proceeding to protect the welfare of the children.”).
¶38 Here, the legislature changed the elements a TPR petitioner must
prove—not the procedural requirements for initiating a TPR case—when it
amended WIS. STAT. § 48.415(2)(a)3. Nothing in the plain language of the amended
statute suggests a petitioner may not initiate a TPR case under the new statute when
the case’s underlying facts occurred before the statute was amended. Sophie’s
contrary assertion therefore fails.
¶39 Sophie additionally argues that use of the word “placed” in the
amended version of WIS. STAT. § 48.415(2)(a)3. shows that the 15-out-of-22-month
20
No. 2019AP894
timeframe begins with a CHIPS order that includes that timeframe’s warning. The
prior version of subdivision 3. read, in pertinent part, that a petitioner must prove
“the child has been outside the home for a … period of 6 months” pursuant to a
CHIPS order. (Emphasis added.) The amended version of subdivision 3. now
provides that a petitioner must prove “the child has been placed outside the home
for a … period of 6 months” pursuant to a CHIPS order. (Emphasis added.) Sophie
maintains, for several reasons, that because the legislature modified subdivision 3.
to include the verb “placed,” “the most natural reading of the entire provision is that
each subsequent use of the term ‘placed’ … is likewise modified by the term
‘pursuant to an order listed under [subdivision] 1.’”—e.g., a CHIPS order including
the elements of the amended version of the continuing CHIPS ground. We are not
persuaded.
¶40 All of Sophie’s arguments in this regard rely upon a faulty premise.
Namely, she contends the amended version of WIS. STAT. § 48.415(2)(a) prohibits
a TPR petitioner from relying on a valid CHIPS order issued prior to the amended
version of § 48.415(2)(a), even if that prior order contained the requisite notice
generally stating the parent’s parental rights may be terminated under the continuing
CHIPS ground but not specifically containing notice of the amended version’s 15-
out-of-22-month timeframe. This premise, as we explain above, is erroneous. For
this reason alone, Sophie’s remaining statutory interpretation arguments lack merit.
¶41 In any event, there is no reasonable basis to interpret “placed” and
“pursuant to an order listed under subd. 1.” as operating differently than the phrase
“has been outside the home” operated with “pursuant to such orders” under the prior
21
No. 2019AP894
version.17 All the relevant language does—and has always done—is require that the
child has been “placed outside the home” or has been “outside the home” pursuant
to a CHIPS order. Indeed, the orders to which the continuing CHIPS ground refers
are those that “place” the child outside the home. In all, Sophie reads too much into
the legislature’s insertion of “placed” in WIS. STAT. § 48.415(2)(a)3.
17
“Placed” operates as a passive-voice verb, in which the entity doing the placing is
unstated in the sentence. Clearly, that entity is a governmental agency or court, as children do not
“place” themselves outside of their parents’ homes.
22
No. 2019AP894
CONCLUSION
¶42 We conclude, as matter of statutory construction, that nothing within
the prior or amended version of WIS. STAT. § 48.415(2)(a) prohibits the Department
from pursuing a TPR against Sophie using the elements for the continuing CHIPS
ground found in the amended version of the statute. Accordingly, the circuit court
did not err by determining that Sophie’s TPR proceedings must employ the current,
amended version of § 48.415(2)(a). We also disagree with Sophie that applying the
amended version of the statute to her circumstances violates her constitutional rights
to due process. We therefore affirm the order of the circuit court.
By the Court.—Order affirmed.
23