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TPR based on continuing denial of visitation or placement upheld

Monroe County DHS v. A.D., 2018AP825, District 4, 7/5/18 (one-judge decision; ineligible for publication); case activity

A.D. argues the circuit court shouldn’t have granted summary judgment as to the grounds of the petition to terminate her parental rights, which alleged continuing denial of periods of physical placement or visitation under § 48.415(4). She also challenges the constitutionality of § 48.415(4), both on its face and as applied to her. The court of appeals rejects both arguments.

A.D. challenges the summary judgment because the order prohibiting her from having contact with her child referred to periods of placement or visitation being “suspended,” not “denied,” the word § 48.415(4) uses. This argument wasn’t made in the circuit court, so it is forfeited. (¶10). But the court of appeals also rejects it on the merits:

¶11     …. A.D. does not provide legal authority that would support a conclusion that there is a meaningful distinction between (1) prohibiting contact by “suspending” periods of placement and visitation with conditions that must be met to reinstate placement or visitation, and (2) prohibiting contact between a parent and a child by “denying” periods of placement and visitation with conditions that must be met to reinstate placement or visitation. Further, I see no starting point for this argument, given the fact that Wisconsin courts use the phrases “no-contact,” “suspended,” and “denial” interchangeably when referring to orders that form the basis for a termination of parental rights pursuant to Wis. Stat. § 48.415(4). See, e.g., Dane County DHS v. P.P., 2005 WI 32, ¶¶3, 9, 24, 279 Wis. 2d 169, 694 N.W.2d 344 (using “no-contact” order, order denying visitation, and order which “suspended” visitation to refer to the same concept); Ronald J.R. v. Alexis L.A., 2013 WI App 79, ¶¶2-3, 348 Wis. 2d 552, 834 N.W.2d 437 (order suspending physical placement formed basis for termination of parental rights on continuing denial ground); Peter H. v. Keri H., Nos. 2009AP2487, 2009AP2488, unpublished slip op., ¶¶2-3 n.2 (WI App April 23, 2010) (order suspending mother’s placement rights formed basis for termination of parentalrights on ground of continuing denial of physical placement or visitation).

A.D.’s facial challenge to § 48.415(4) argues the statute violates substantive due process because it allows a finding for grounds to terminate without first allowing the parent the opportunity to show he or she had good reason for failing to get a modification of the order denying visitation or placement. This claim is foreclosed by P.P., 279 Wis. 2d 169, ¶¶15, 24-26, 32, which rejected the same sort of argument on the ground that a parent gets all the process he or she is due in the “step-by-step process” by which the order denying visitation or placement is obtained. (¶¶14-15). Her as-applied challenge fails because before the TPR petition was filed, she filed a motion in the CHIPS action to modify the order suspending visitation. (The circuit court denied the motion.) The opportunity to seek modification of the order, and the fact she availed herself of that opportunity, defeat her as-applied challenge. (¶¶16-17).

A.D. also claims the denial of her modification motion was improper because a social worker misinformed the court about her stability and sobriety. Besides failing to explain specifically what the misinformation was, this claim is essentially a collateral attack that can’t be entertained in the TPR proceeding. (¶18 & n.6).

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