A circuit court may not enter a summary judgment finding a parent unfit during the grounds phases of a TPR proceeding when that finding is based on an order denying the parent physical placement due to his (or her) incarceration.
Alandria’s father was convicted of domestic violence against her mother and incarcerated in 2009. By 2013, Winnebago County was seeking termination of both parents’ rights. The County prevailed against the father on summary judgment at the “grounds” phase where it bore the burden of proving parental unfitness §48.415. One “ground” for unfitness is evidence that a court denied periods of physical placement or visitation for more than a year. Here the court of appeals held that such an order cannot be proof of unfitness where it is based solely on the parent’s incarceration. That would be an unconstitutional failure to make an individualized determination of unfitness per Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. The court of appeals explained:
[T]he underlying order on which the summary judgment rests states clearly that the sole condition for reinstatement of placement is that Henry no longer be incarcerated and be available for visits outside of prison. It makes no reference to any other defect whatsoever with respect to Henry’s fitness as a parent, and the circuit court never made any findings that Henry was unfit for any other reason. A parent’s incarceration is “not … irrelevant” to unfitness, but it is unconstitutional to base a finding of unfitness upon nothing more than incarceration. Jodie W., 293 Wis. 2d 530, ¶¶49-50. This would be a different case if there were evidence that the incarcerated parent failed to meet multiple conditions for return of the child. See, e.g., Ozaukee Cnty. DHS v. Callen D.M., No. 2013AP1157, unpublished slip op. ¶¶16-18 (WI App Sept. 25, 2013) (citing Waukesha Cnty. DHHS v. Teodoro E., 2008 WI App 16, 307 Wis. 2d 372, 745 N.W.2d 701 (2007)). Likewise, this case is distinguishable from Dane County DHS v. Latasha G., No. 2014AP45, unpublished slip op. ¶¶2-3, (WI App Apr. 3, 2014), where the parent was incarcerated for child abuse of the children in the TPR case and reinstatement was conditioned on modification of the no-contact order protecting the children. In those circumstances, an order showing denial of physical placement established unfitness based on something besides the parent’s incarcerated status. Id., ¶13. Slip op. ¶13.