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A child is “adjudged” CHIPS for purposes of § 48.415(10) when CHIPS grounds are found

Dane County DHS v. Christina L., 2014AP1437, District 4, 11/20/14 (1-judge decision; ineligible for publication); case activity

There was a factual basis for Christina L.’s no contest plea to grounds for termination under § 48.415(10) because the child in this case, Aiden G-L., was “adjudged” CHIPS within three years of the involuntary termination of her parental rights to another child, Shaun L.

Under § 48.415(10), parental rights may be terminated when the child at issue has been “adjudged” to be in need of protection or services (CHIPS) and, within three years prior to the date the court adjudged the child to be CHIPS, a court has ordered termination with respect to a different child of the same parent. Christina’s parental rights to Shaun L. were terminated in July 2009. In March 2012, the court found grounds for a CHIPS petition regarding Aiden G-L., and in May 2012, the court held a dispositional hearing on Aiden G-L.’s CHIPS case, and placed various conditions on Christina L. However, a written dispositional order was not entered until November 2012, thought it provided that the date of the dispositional hearing in May 2012, was “the effective date of this order.” (¶¶3-4).

In August 2013, the County filed a petition for the termination of Christina’s parental rights to Aiden G-L., with one of the grounds being prior involuntary termination of parental rights to another child of Christina L. pursuant to § 48.415(10). Christina ultimately admitted this ground, but postdisposition she challenged the factual basis for this ground, arguing that Aiden G-L. was adjudged CHIPS more than three years after her parental rights to Shaun L. had been terminated because the November 2012 written CHIPS dispositional order as to Aiden G-L. was entered more than three years after termination of rights to Shaun L. (¶¶5-7).

The court of appeals holds that Aiden G-L. was “adjudged” CHIPS at the March 2012 hearing at which CHIPS grounds were found, not at the later dispositional hearing in May 2012 or the November 2012 entry of the dispositional order:

¶14    I conclude that her argument fails for at least the reason that, under a plain meaning interpretation, the term “adjudged” within the context of Chapter 48 contemplates that the child at issue has already been adjudged CHIPS before the court addresses disposition at the CHIPS dispositional hearing. See, e.g., Wis. Stat. § 48.335(1). …

¶15   When a child is alleged to be CHIPS, the court holds a plea hearing “to determine whether any party wishes to contest an allegation that the child … is in need of protection or services….” Wis. Stat. § 48.30(1). If the petition is contested, the court holds a fact-finding hearing to determine whether the allegations that a child is CHIPS are “proved by clear and convincing evidence.” Wis. Stat. §§ 48.30(7), 48.31(1). If the petition is not contested and the court has established that there is a factual basis for the allegations in the petition, or after the allegations are proven after a fact-finding hearing, the court holds a dispositional hearing. Secs. 48.30(6)(a), (8)(c), 48.31(7)(a). The purpose of the dispositional hearing is “to determine the disposition of a case in which a child is adjudged to be in need of protection or services….” Wis. Stat. § 48.335(1) (emphasis added). This language plainly contemplates that a child has already been adjudged CHIPS before the court addresses disposition at the CHIPS dispositional hearing. Here, it is undisputed that grounds were found by default on March 23, 2012, and the dispositional hearing was held on May 25, 2012, within three years of the termination of Christina L.’s parental rights to Shaun L.

¶16    The word “adjudged” is used in a similar context in other statutes relating to the CHIPS procedure in Chapter 48. For example, Wis. Stat. § 48.33(1) provides that “[b]efore the disposition of a child … adjudged to be in need of protection or services the court shall designate an agency, as defined in s. 48.38(1)(a), to submit a report….” (Emphasis added.) Wis. Stat. § 48.345 [(intro.)] further provides that “[i]f the judge finds that the child is in need of protection or services … the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section….” Sec. 48.345. In this context, the term “adjudged” plainly contemplates that a child is “adjudged” CHIPS prior to the court deciding disposition of the CHIPS proceeding.

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