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Child welfare agency can file TPR petition on any ground

Rock County HSD v. W.J., 2015AP2469, District 4, 5/12/16 (one-judge decision; ineligible for publication); case activity

The county department had authority under § 48.42(1) to file a TPR petition alleging any ground for termination.

The petition in this case alleged W.J. abandoned his child and that the child was in continuing need of protection and services. The alleged period of abandonment predated the initiation of CHIPS proceedings. (¶¶2, 8 & n.3). W.J. argues that § 48.25(1) permits a department to file a TPR petition only if the court had CHIPS jurisdiction during the period of abandonment or the court ordered the department to file a petition, neither of which happened here.

To the extent § 48.25(1) conflicts with the specific statute governing filing of TPR petitions, § 48.42(1), the latter controls, State ex rel. Hensley v. Endicott, 2001 WI 105, ¶¶19-21, 245 Wis. 2d 607, 629 N.W.2d 686 (where statutes conflict, a more specific statute controls over a more general statute), and authorized the department to file the petition:

¶13    Wisconsin Stat. § 48.25 addresses who is authorized to file a petition in any type of procedure under Wis. Stat. ch. 48. Wisconsin Stat. § 48.42(1) more specifically addresses who is authorized to file a petition in a proceeding to terminate parental rights, and it states that in addition to the parties identified in that section, those parties authorized under Wis. Stat. § 48.25 to file a petition are also authorized to filed a petition to terminate parental rights. Section 48.42(1), not § 48.25, is the more specific statute, and therefore, it controls.

¶14     There is no dispute that Rock County DHS is an agency. See Wis. Stat. § 48.40(1) (defining “agency” as “the department, a county department, or a licensed child welfare agency”). As such, Rock County DHS was authorized under Wis. Stat. § 48.42(1) to file a petition for the termination of W.J.’s parental rights on any ground. ….

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