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TPR – Grounds – Impossible Conditions

Dane Co. DHS v. Porfirio O. / Minerva L., 2011AP1247 et al., District 4, 8/11/11

court of appeals decision (not recommended for publication); for Porfirio O.: Dennis Schertz; for Minvera L.: Steven Zaleski; case activity (Porfirio); case activity (Minerva)

The parents did not meet their burden of showing factual dispute as to whether their incarceration was the sole reason they were unable to meet conditions for return of the children under CHIPS orders, therefore summary judgment on this ground is upheld. Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, discussed in relation to § 48.415(4) as ground for termination (parent denied physical placement or visitation under CHIPS order for at least one year).

¶19      We will assume without deciding that the rationale in Jodie W. applies to TPR proceedings under Wis. Stat. § 48.415(4), as well as under § 48.415(2).  Thus, we will assume that there is a substantive due process violation if the sole reason a parent has been denied physical placement or visitation under a CHIPS order for at least a year is that it is impossible for the parent to meet a condition under that order solely because of incarceration.  Given this assumption, in order to avoid partial summary judgment under § 48.415(4), Minerva and Porfirio each need to show, at a minimum, that there is a reasonable inference from the facts in the record that one or more conditions were impossible to meet solely because of incarceration and, as to those that were not impossible to meet for that reason, the parent met those conditions.[5]  We conclude neither parent makes this showing.

¶20      With respect to the record concerning Minerva, she did not present any factual submission showing that she has satisfied the conditions that were within her control.  Here particularly, there is no factual showing that she acknowledged and took responsibility for her abusive behavior or demonstrated an understanding of how her behavior negatively affected her children.  While this alone defeats her challenge, we also observe that the deposition testimony on which she relies does not create a genuine issue of material fact that any conditions were impossible for her to satisfy because of her incarceration. …

¶23      Like Minerva, Porfirio contends that it was impossible for him to satisfy the conditions in the CHIPS orders while he was incarcerated, but he has submitted no factual materials showing that he has satisfied the conditions within his control.  The social worker’s testimony as to him is more definite on the lack of availability of services for certain of the conditions.  However, for the reasons we have already explained, even if there is a factual dispute regarding the impossibility of obtaining the services required to meet some of the conditions, he cannot show that his parental rights were terminated solely because of his incarceration unless he can show that he has met all the conditions that were not impossible to fulfill because of his incarceration.  He has not presented any factual submissions that create a dispute of fact as to whether he satisfied all of the conditions within his control.[8]

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