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TPR based on continuing denial of periods of placement and disposition didn’t violate due process

Dane County DHS v. Latasha G., 2014AP45 & 2014AP46, District 4, 4/3/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2014AP45; 2014AP46

Latasha argues she was determined to be unfit based on a condition that was impossible for her to satisfy due to an order in criminal cases barring any contact with the girls. Thus, the termination violated her substantive due process rights under Kenosha Cnty. D.H.S. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, which held a mother’s substantive due process rights were violated by termination on a continuing CHIPS ground, § 48.415(2), based solely on the mother’s failure to meet the conditions of return that were impossible for her to meet while she was incarcerated. The court of appeals rejects her argument.

Latasha was criminally charged with abuse of her two children, and the children were placed out of the home in an associated CHIPS proceeding. (¶¶2-3). Latasha was ordered not to have any contact with the children as a bail condition in the criminal cases, and the CHIPS order allowed contact only upon certain conditions, including removal of the no contact order in the criminal cases. (¶3). Latasha tried unsuccessfully to modify the no contact order before being convicted and sentenced to prison. (¶4). The County thereafter filed a TPR petition under § 48.415(4), which applies when a parent has been denied periods of physical placement or visitation under an order in certain types of cases, and at least one year has elapsed since the order was issued without any modification that permits physical placement or visitation. (¶5). The circuit court granted summary judgment on the petition. (¶¶6-7).

The court of appeals assumes, without deciding, that Jodie W. applies to TPR proceedings under § 48.415(4) and that due process is violated if the sole reason a parent has been denied placement or visitation for at least a year is that it is impossible for the parent to meet the conditions for placement or visitation solely because of the parent’s incarceration. Under those assumptions, Latasha needs to show she was unable to have physical placement or visitation solely because of the fact she was incarcerated, and she has not done so:

¶13      It is undisputed that in the criminal cases against Latasha, the circuit court imposed an order restricting her contact with Ivyonna and Ceceilia. However, the record does not support a reasonable inference that those conditions were imposed merely by virtue of Latasha’s incarceration. Many parents are incarcerated but are still permitted contact with their children. Instead, the reasonable inference here is that the orders restricting Latasha’s contact were imposed in light of Latasha’s physical abuse of Ivyonna and Ceceilia, matters entirely within her own control, which led to the charges against her and her subsequent convictions. Latasha has thus failed to demonstrate a reasonable inference that she was not able to meet the conditions of the CHIPS order solely because of incarceration.

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