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Family court order denying placement didn’t need to advise parent of conditions for return

G.K. v. S.C., 2019AP1645, 2019AP1646, & 2019AP1647, District 4, 11/7/19 (one-judge decision; ineligible for publication); case activity

S.C.’s parental rights to her three children were terminated due to continued denial of periods of physical placement under § 48.415(4) based on a family court order that denied her periods of physical placement. She argued the family court order could not be the basis for a TPR because it didn’t advise her of the conditions necessary for the children to be returned to her or for her to be granted placement or visitation. Maybe so, says the court of appeals, but the statute doesn’t require the family court order to do that.

¶12     Wisconsin Stat. § 48.415(4) provides that “[c]ontinuing denial of periods of physical placement or visitation” is grounds for termination of parental rights, and “shall be established by proving all of the following:”

(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under [various sections of the Children’s Code, Chapter 48] containing the notice required by s. 48.356(2) ….

(b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation.

¶13     S.C. acknowledges that the Placement Order was issued “in an action affecting the family.” She acknowledges that the text of the Placement Order expressly warned her that grounds would exist to terminate her parental rights if it was not modified within a year. She nevertheless argues that the Placement Order had to fully comply with Wis. Stat. § 48.356(2), and to do so it was also required to identify “conditions necessary for the child…to be returned to the home or for the parent to be granted visitation.”

¶14     S.C.’s argument conflates the requirements for a family court order denying placement and the requirements for an order issued in a CHIPS proceeding initiated by the government. For child in need of protective services (“CHIPS”) proceedings, the court is statutorily required to include conditions in a dispositional order, see Wis. Stat. § 48.355(2)(b)7., and a parent subject to a CHIPS dispositional order may seek the return of the child if he or she complies with the court-ordered conditions, see Sheboygan County DHHS v. Tanya M.B., 2010 WI 55, ¶47, 325 Wis. 2d 524, 785 N.W.2d 369. The same is not true for family court orders denying placement under Wis. Stat. § 767.41(4), in which such conditions are neither typical nor required. See § 767.41(4); State v. Alice H., 2000 WI App 228, ¶33, 239 Wis. 2d 194, 619 N.W.2d 151. …

¶15     In any event, this court has already addressed and rejected the argument that S.C. makes [in Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, 281 Wis. 2d 261, 697 N.W.2d 476]. ….

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