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Parent in TPR not entitled to instruction about incarceration making it impossible to comply with conditions for return of her child because she had ample time before incarceration to comply

Ozaukee County DHS v. Callen D.M., 2013AP1157, District 2, 9/25/13; court of appeals decision (1-judge; ineligible for publication); case activity

Callen D.M. was not entitled to an instruction about the impossibility of meeting the conditions of a CHIPS order due to her incarceration, a TPR defense recognized in Kenosha Cty. DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845:

¶13      The facts in Callen’s case stand in stark contrast to those in Jodie W. Callen had over two and one-half years to comply with the County’s dispositional order before she entered custody, from March 2009 until January 2012, and it was Callen’s failure to fulfill the CHIPS requirements before her incarceration, not after, that supported the petition in her case.

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¶16      Additionally, this is not a Jodie W. case because, unlike in Jodie W. where a single failure was asserted, here there were fourteen conditions total in the dispositional order, several of which Callen failed to meet long before her incarceration….

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¶17      …[T]his case is more analogous to Waukesha County DHHS v. Teodoro, 2008 WI App 16, 307 Wis. 2d 372, 745 N.W.2d 701 (2007). In that case, a deported alien argued that Jodie W.controlled the result in his case, because it was impossible for him to comply with some CHIPS conditions from abroad. We rejected his argument, however, because of his failure to meet other conditions that were not affected by his location.  Teodoro, 307 Wis. 2d 372, ¶23. Although Teodoro was not in the same country as his daughter, he still could have met a number of the conditions of the CHIPS order, such as talking to doctors, teachers, therapists, and other people who cared for his child to learn what the child needed. Id.

¶18      Like Teodoro, Callen failed to meet many other conditions besides those she alleges were impossible. The fact that Callen spent some time in prison, making it impossible to find suitable housing during her imprisonment, does not mean that it was impossible for her to properly parent throughout the two and one-half year period. This is where her syllogism goes wrong. Being sent to prison did not erase her failure to parent before incarceration. For her to be able to make her case for the impossibility instruction, there must have been evidence creating a question of fact as to the impossibility to perform throughout the two and one-half years. That factual situation is simply not present here.

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