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SCOW to decide constitutional challenge regarding the continuing CHIPS ground for a TPR

Eau Claire County DHS v. S.E., 2019AP894, review of  published opinion granted 10/21/20, case activity.

When the court orders a child in need of protection or services (“CHIPS”) placed outside the family home, a parent’s rights may be terminated if he or she fails to meet the conditions for the child’s return in the timeframe set out by statute. Wis. Stat. § 48.415(2)(a). In April 2018, the legislature shortened this timeframe. Under either version, the CHIPS order placing the child outside the home must include “notice” of “any grounds for termination of parental rights[.]” Wis. Stat. §§ 48.415(2)(a) and
48.356.

Issues for Review:

Whether as a matter of statutory construction the new, shorter timeframe begins with the initial CHIPS order, even if it predates the change in the statute and thus does not include notice of the shorter timeframe.

Whether starting the shorter timeframe with a CHIPS order that predates the statutory change violates a parent’s due process rights.

As noted, one ground for terminating parental rights is that a parent has failed to meet the conditions set out in a CHIPs order for the child’s return to the parent’s home. The County bears the burden of proving that the CHIPS order contains the notice required by Wis. Stat. § 48.356(2). If it doesn’t, the action fails.

In addition to showing that the parent has failed to meet the conditions for return, the County must show that there is a substantial likelihood the parent will not meet the CHIPS conditions at a given point in the future, depending on which version of the statute applies. Wis. Stat. § 48.415(2)(a)3.  Under the pre-2018 version of the statute, the factfinder looks forward 9 months from the date of the trial. Under the current version of the statute, the factfinder looks forward only if the child has been placed out of the home for less than 15 of the most recent 22 months, and if so, only looks forward to the 15-month mark.

The issue in this case is whether the 15-out-of-22 month time frame begins with any CHIPS order or the first CHIPS order that includes the notice of the 15-out-of-22 month timeframe. S.E. argues that if the 15-out-of-22 month rule applies to orders issued prior to the rule’s adoption, the rule violates procedural due process, under State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995). Patricia A.P. held that once a parent is warned that parental rights to a child may be lost because of the parent’s future conduct, a substantial change in the type of conduct that may lead to the loss of rights without notice to the parent is fundamentally un fair. See our prior post here. 

S.E. also raises an important argument regarding appellate procedure. The court of appeals is supposed to be “neutral” and not develop arguments for either party. In this case, it ruled against S.E. by developing an argument on statutory interpretation that neither the parties nor the circuit court had advanced. It held that a parent is entitled to notice of grounds for a TPR, but not the “elements” of those grounds.   S.E. asks SCOW to direct the court of appeals to order additional briefing or oral before making sua sponte statutory interpretations. Boy, wouldn’t that be nice?

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