Anita P. raised equal protection and due process challenges to § 48.415(4)(a) for the first time on appeal, and the court of appeals finds it’s not in the interest of justice to decide the challenges. We describe the issues in more detail below, since practitioners handling TPR cases arising out of placement denials in family court may want to consider raising them (in the trial court first, of course).
Anita’s parental rights were terminated after her physical placement rights were denied by a family court. The family court gave Anita a written notice about termination as required by § 767.41(4)(cm)—though Anita refused to sign the notice, and it wasn’t appended to the family court order. In the subsequent TPR proceeding, Anita challenged the TPR petition based on the fact the notice wasn’t attached to the family court order. The circuit court rejected the challenge, relying on Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, 281 Wis. 2d 261, 697 N.W.2d 476, which held that attachment of the notice is not an element under § 48.415(4)(a) when the denial of placement occurs in family court rather than juvenile court. (¶¶2-4).
Anita claims that § 48.415(4)(a), as interpreted by Kimberly S.S., violates equal protection because it requires a notice element when the underlying denial of physical placement originated from a juvenile court order, but requires no notice element when the underlying denial of physical placement originated from a family court order. She also argues that § 48.415(4)(a) violates her due process rights because her parental rights were terminated without proper protections and without a finding that she is unfit. While the court of appeals has the discretion to decide issues raised for the first time on appeal, it declines to do so here because it is not in the interest of justice to do so, for two reasons: 1) it’s clear Anita actually got actual notice that continued denial of physical placement could be grounds for termination of her parental rights; and 2) the family court’s denial of physical placement was effectively a finding of unfitness, and the order denying placement was subject to modification, so that Anita could have addressed the issues that led to the denial of placement and then sought resumption of placement. (¶¶9-13).