This is the third TPR opinion in a week addressing challenges to the denial of a postjudgment fact-finding hearing under § 809.107(6)(am) and a constitutional challenge to the application of the failure to assume parental responsibility standard to a parent whose children have been removed from the home under a CHIPS order. As with the other two cases, the court of appeals rejects the challenges.
A.E. (referred to in the decision as “Tony,”a pseudonym adopted by the court under § 809.19(1)(g)) appealed the order terminating his rights to his two children and filed a motion for remand under § 809.107(6)(am) asking for a postjudgment hearing on the issues he wanted to raise. The court of appeals granted the remand, but after the issues were briefed the circuit court denied his motion without a hearing. (¶8). No problem, says the court of appeals (again). The statute refers to issues that “may require postjudgment fact-finding,” and a circuit court may conclude (as the circuit court here did) that the record shows the parent is not entitled to relief and that a fact-finding hearing isn’t necessary. (¶¶9-13).
A.E. next argues that the failure to assume parental responsibility grounds in § 48.415(6) can’t be the basis for termination of parental rights when a CHIPS removal order has been entered because the removal order makes it impossible for the parent to have a “substantial parental relationship,” as defined in § 48.415(6)(b). In addition to finding this argument “unsupported” by legal authority, the court dismisses it because the CHIPS order also imposes parental responsibilities on a parent, clearly indicating that the parent continues to have parental duties and a “substantial parental relationship.” (¶¶14-15). Nor does the removal order make § 48.415(6) unconstitutional as applied to A.E. by making it impossible for A.E. to assume responsibility. For this argument A.E. relies on Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, which doesn’t apply because the parent there was incarcerated and the ground for termination was continuing CHIPS, not failure to assume parental responsibility. (¶¶16-19).
Finally, as to one of A.E.’s children the ground for termination was continuing CHIPS, and the court finds there was sufficient evidence to support the circuit court’s conclusion that that ground was proven. (¶¶20-23).