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Summary judgment at TPR grounds phase reversed due to inadequate notice during CHIPS proceedings

Jackson County DHS v. R.H.H., Jr., 2018AP2440 to 208AP2443, District 4, 4/4/19 (one-judge decision; ineligible for publication); case activity

At the grounds phase R.H.H.’s termination of parental rights proceedings, the circuit court granted the County’s motion for summary judgment on the basis of continuing denial of visitation under § 48.415(4). Not so fast, says the court of appeals.

To establish the grounds of continuing denial of visitation in R.H.H.’s case, the County had to prove two things: One, that R.H.H. had been denied visitation under a juvenile court order that contained the notice required by § 48.356(2); and two, that at least one year has elapsed since the order denying visitation was issued and the court has not modified its order so as to permit visitation. The notice required under § 48.356(2) has to tell the parent in writing about any potential grounds for termination of parental rights and has to list the conditions necessary for the parent to be granted visitation.

R.H.H. got three notices in the course of the CHIPS proceedings regarding his children, but the first two failed to give notice of the grounds for termination and the third failed to include the conditions R.H.H. had to meet to get visitation. (¶20). So, as the County concedes, each notice was missing something, but essentially argues the notices put together did the trick. Not so, says the court:

¶24     The County … argues that the September 10, 2013, order that suspended all contact contained the written notice concerning grounds to terminate parental rights and “effectively incorporated” and “expanded” the June 13, 2013, order “to include a prohibition on telephone contact.” Based on this premise, the County asserts that the June 13, 2013, order satisfied Wis. Stat. § 48.415(4). In other words, the County argues that it can bootstrap the June 13, 2013, order out of its failure to provide the required written notice using the September 10, 2013, order. The County does not develop this “incorporation” argument or cite any legal authority in support, and I need not consider it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (appellate court need not consider undeveloped arguments or arguments unsupported by references to legal authority). Additionally, the County’s argument ignores the fact that the September 20, 2013, order failed to include the required written notice of conditions necessary for R.H.H. to be granted visitation.

¶25     Moreover, even if the County were to develop an argument, I would reject it. The plain language of Wis. Stat. § 48.415(4) thwarts any argument that the County could develop. As described above, § 48.415(4) mandates that an order denying visitation must contain the notice required under Wis. Stat. § 48.356(2).

The County also argued R.H.H. waived (forfeited) his challenge to the summary judgment by failing to argue in the circuit court that the notices were insufficient. “The waiver rule is a rule of judicial administration, and as such, a reviewing court has the inherent authority to disregard a waiver and address the merits of an unpreserved issue in exceptional cases.” Village of Trempealeau v. Mikrut, 2004 WI 79, ¶17, 273 Wis. 2d 76, 681 N.W.2d 190. This case involves termination of a parent’s rights, and the supreme court has stated that “[p]arental rights termination adjudications are among the most consequential of judicial acts, involving as they do ‘the awesome authority of the State to destroy permanently all legal recognition of the parental relationship.’” Steven V. v. Kelley H., 2004 WI 47, ¶21, 271 Wis. 2d 1, 678 N.W.2d 856. Because “[f]ew forms of state action are … so severe and so irreversible,” see Santosky v. Kramer, 455 U.S. 745, 759 (1982), the court of appeals disregards R.H.H.’s failure to raise the issue in the circuit court. (¶23).

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