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Challenges to successive TPR proceeding don’t succeed

State v. K.J. & State v. A.W., 2016AP1501/1502 and 2017AP720/721, District 1, 8/8/17 (one-judge decision; ineligible for publication); case activity: 2016AP1501; 2016AP1502; 2017AP720; 2017AP721

The circuit court didn’t lose competency to terminate the parental rights of K.J. and A.W. after an initial TPR petition failed, nor did the doctrine of issue preclusion apply to the second TPR trial.

The state filed a TPR petition based on continuing CHIPS with respect to Diane, the daughter of K.J. and A.W. The state didn’t meet its burden of proof on that petition because the child protective service agency failed to provide the counseling services required under the CHIPS order. (¶¶2-3). But the failed TPR petition wasn’t immediately dismissed; instead, the circuit court gave the state time to move to extend and revise the CHIPS order. Some months after the order was extended and revised the state filed a new TPR petition that again alleged continuing CHIPS grounds. (¶¶3-5).

K.J. and A.W. argue the circuit court lost competency to proceed on the second TPR petition because the first petition should’ve been dismissed immediately upon finding that the state failed to prove grounds for termination under § 48.31(2); when that didn’t happen, the CHIPS petition became invalid for purposes of tolling the applicable time limits and the underlying CHIPS order expired as a matter of law under § 48.315(1)(a). (¶¶16-18). The court of appeals rejects this claim on statutory, policy, and forfeiture/estoppel grounds:

  • The text of § 48.31(2) doesn’t require immediate dismissal of a TPR petition where the state fails to prove grounds, unlike other statutes in ch. 48 that require particular actions to be taken “immediately,” e.g.§ 48.424(4) (generally requiring the circuit court to immediately proceed to a disposition hearing following a fact-finding hearing); thus, the legislature’s omission of the word “immediately” appears to be conscious. (¶19).
  • It makes sense not to immediately terminate a CHIPS order upon dismissal of a TPR petition, as that would have required an immediate return of the child to her parents despite the problems in the home that led to the CHIPS order in the first place. (¶20).
  • Neither parent objected to the state’s request for an adjournment to extend and revise the CHIPS dispositional order, and both parents stipulated to a one-year extension and revision of the order. (¶21).

The court also rejects the parents’ issue preclusion argument—namely, that it was improper for the court to consider the agency’s efforts to provide counseling in the period up until the trial on the first CHIPS petition, given the failure of proof at the trial on that petition. The issue litigated at the second trial was whether the child protective services agency made reasonable efforts during the entire period of the CHIPS dispositional order, including the period after the order was revised and extended. By definition, that issue could not have been litigated at the first trial. (¶¶23-28).

Finally, the circuit court didn’t err in ruling the state could admit limited evidence about the parents’ abuse of Diane’s older sibling. The admission of a parents’ prior conduct is admissible to show “the complete story” as to why a child was removed from a parent’s home, Modesto F. v. Christal M., 2004 WI App 106, ¶¶20-21, 272 Wis. 2d 816, 681 N.W.2d 289, and to help predict whether a parent might comply with CHIPS conditions in the future, La Crosse County DHS v. Tara P., 2002 WI App 84, ¶¶10, 13, 252 Wis. 2d 179, 643 N.W.2d 194. (¶¶29-33).

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