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TPR — Continuing CHIPS ground; constitutionality as applied to parent with cognitive limitations

State v. Ebony D., 2013AP619, 2013AP620, & 2013AP621, District 1, 6/25/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP6192013AP6202013AP621

The continuing need for protection and services grounds for termination of parental rights, § 48.415(2), is not unconstitutional as applied to Ebony D. because the evidence shows she was able to meet the continuing-CHIPS order’s conditions for return despite her claim that her cognitive limitations made it impossible for her to fulfill the conditions.

Ebony had three children, one born in 2000 and twins born in 2004. She lived independently with and cared for the children until September 2009, when Ebony was charged with criminal physical abuse of one of the twins and a CHIPS proceeding was commenced. (¶2). All three children were removed and various conditions were placed on their return. The original CHIPS order was entered in January 2010 and revised twice in 2011; at no time did she challenge any of the conditions for return. (¶3). In January 2012 the state filed TPR petitions based on her failure to meet the conditions for return of the children and a jury found the grounds to be proven. (¶4).

Ebony argued that her cognitive limitations made it impossible for her to fulfill the conditions of return, and therefore the statute is not “narrowly tailored” as applied to her and violates the parent’s right to substantive due process, Kenosha County DHS v. Jodie W., 2006 WI 93, ¶56, 293 Wis. 2d 530,  716 N.W.2d 845. (¶¶4, 5, 6). In support of her argument, she relies entirely on the testimony of Kenneth Sherry, an independent psychologist who evaluated Ebony for the CHIPS case in 2009 and also testified at the TPR trial. (¶¶7, 10, 16).

Sherry testified that, based on her low IQ and reading scores, he would not expect she could live in the community independently or ever be fully functional and independent and that her cognitive disability created an unsafe environment for her children. (¶13). However, he also testified that, contrary to his expectations, she did live in the community independently for eight years, managed her money independently, and marginally managed the home and some functional tasks there, though probably by getting some help. (¶14). Through counseling and supportive community programs, he testified, she could function better and remain involved in the children’s lives. “Thus, contrary to Ebony D.’s argument, Dr. Sherry did not testify that it was impossible for her to meet the conditions for return, but rather that she needed help to do so and he made specific recommendations for that help.” (¶15). Sherry’s testimony, therefore, does not support Ebony’s claim.

Nor does the rest of the record. Citing testimony of the children’s social worker and the children’s psychotherapist (¶¶17-25) as well as Ebony’s own testimony about living independently with the children for eight years (¶26), the court finds that the record demonstrates Ebony’s choices, not her cognitive limitations, caused her to fail to meet the conditions for return. (¶16). Thus, this case is unlike Jodie W., 293 Wis. 2d 530, ¶52, which reversed the circuit court’s order terminating parental rights because, although the circuit court properly considered the parent’s incarceration, it did not consider other relevant facts and circumstances particular to the parent:

¶28      The same cannot be said here. The circuit court fully examined Ebony D.’s needs, considering testimony from Dr. Sherry about Ebony D.’s needs and his recommendations for addressing them, and considering testimony from the BMCW professionals about Ebony’s failures to follow through with the particularized help given and the visitations offered. The record also shows Ebony D.’s own testimony on the subject. The full inquiry found lacking in Jodie W. was undertaken here.

Accordingly, the court concludes the statute, as applied to Ebony D., is not unconstitutional.

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