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Mother received required warnings of potential termination of parental rights

Portage County DHHS v. Julie G., 2014AP1057, District 4, 7/31/14 (1-judge; ineligible for publication); case activity

The record shows Julie received the warnings required under § 48.356 even though the relevant notice form did not have her signature. In addition, Julie’s substantive due process rights were not violated because the conditions for return of her child imposed by the continuing CHIPS order were not impossible for her to meet despite her incarceration.

While Julie did not personally sign the “Notice Concerning Grounds to Terminate Parental Rights” form (which was attached to an order in the CHIPS case that changed placement), there is no authority in § 48.356 or Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, for the proposition that the parent must sign the form to satisfy the warning requirement. (¶¶18-25). In any event, the record shows Julie received the required warnings:

¶26   …. Regardless whether Julie signed the “Notice Concerning Grounds to Terminate Parental Rights,” the February 2012 order states that: Julie was in court when the order was issued; and she was orally advised of the grounds for termination of parental rights and the conditions necessary for Brooklyn’s return. The order on its face provides, “Written TPR Warnings are attached,” and indicates that the order was distributed to Brooklyn’s parents. The circuit court admitted the February 2012 order into evidence at trial, and the jury was allowed to examine the order during deliberations. The court order is official documentary evidence, on which the jury could rely. See Steven V., 271 Wis. 2d 1, ¶37 …. Based on this evidence, the jury could have found that the Department proved that Julie received the February 2012 order and notice containing the warnings prescribed by Wis. Stat. § 48.356.

As for the impossibility of the return conditions, Julie’s incarceration didn’t make those conditions impossible, unlike in Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845:

¶33    While it is true that certain of the conditions for return in the February 2012 order were impossible for Julie to meet because of her incarceration, unlike in Jodie W., a number of the conditions in that and earlier orders had gone unmet before Julie was incarcerated. It was Julie’s inability to fulfill the conditions set forth in earlier orders issued before her incarceration, not after, that provided the basis to find that grounds existed to terminate Julie’s parental rights to Brooklyn.

The court also rejects Julie’s interest-of-justice claim (alleging corporation counsel’s closing argument confused the issues) because Julie didn’t object or asks for a curative instruction, and has thus forfeited the argument. (¶35). But interest of justice claims can be made despite a lack of objection at trial, and are an alternative to ineffective assistance claims, State v. Williams, 2006 WI App 212, ¶¶14-17, 296 WIs. 2d 834, 723 Wis. 2d 719. It is safe to assume Julie’s appellate pleadings made this elementary point, so the court of appeals either overlooks or ignores it.

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