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TPR court erred in granting partial summary judgment at grounds phase

Brown County DHHS v. L.F.H., Sr., 2019AP145, District 3, 4/23/19 (one-judge decision; ineligible for publication); case activity

The County filed a petition to terminate L.F.H.’s parental rights based on a continuing denial of his periods of physical placement or visitation with his son, Leon (a pseudonym). The circuit court granted the County’s motion for summary judgment at the grounds phase, but that was error because the County failed to prove the CHIPS dispositional order satisfied the requirements of § 48.415(4).

L.F.H.’s visitation with his son was “suspended” until “further proceedings” at the time the child was found in need of protection and services; a written copy of this “Suspension Order” was sent to L.F.H. (¶3). A month later a CHIPS dispositional order was entered; it imposed a number of conditions L.F.H. had to meet to secure the return of his child, and that failure to meet those conditions might result in termination of parental rights. (¶4). The dispositional order made no reference to the order suspending L.F.H.’s visitation rights.

Fast forward to the termination proceeding, where the County asked for–and was granted—summary judgment on the grounds of continuing denial of visitation. (¶¶5-6). This was error, says the court of appeals.

To prove grounds exist to terminate parental rights under § 48.415(4), the County had to show the dispositional order denied L.F.H. visitation with Leon and, as required by § 48.356, notified L.F.H. of the conditions he had to meet to regain visitation or secure Leon’s return to his care. § 48.415(4)(a). Neither the suspension order nor the dispositional order, individually or together, satisfy § 48.415(4)(a)’s requirements:

¶11     The parties agree that although the Suspension Order denied L.F.H. visitation with Leon, the circuit court properly found the Suspension Order alone did not satisfy Wis. Stat. § 48.415(4)(a)’s requirements…. The Suspension Order was not entered in an action affecting the family and clearly is not a CHIPS dispositional order because it lacks the information required by Wis. Stat. § 48.355(2)(b). It also is not an order “under [Wis. Stat. §§] … 48.363, 48.365, 938.345, 938.363 or 938.365 ….” See Wis. Stat. § 48.415(4)(a). We therefore agree that the plain language of § 48.415(4)(a) does not permit the Department to rely only upon the Suspension Order to prove L.F.H. was denied visitation with Leon.

¶12    The Department contends the circuit court properly relied on the Dispositional Order to terminate L.F.H.’s parental rights under Wis. Stat. § 48.415(4)(a). However, § 48.415(4)(a)’s plain language requires that the Dispositional Order be the operative order that denied L.F.H. visitation with Leon. The Dispositional Order and its conditions of supervision contain no language that would provide L.F.H. with notice that the order suspended his visitation with Leon.

****

¶15     The Department … argues that when the Suspension Order and the Dispositional Order are construed together, they constitute a CHIPS dispositional order that denied L.F.H. visitation. Again, we disagree.

¶16     Wisconsin Stat. § 48.415(4)(a)’s plain language does not permit the Department to rely on two separate orders to create one that satisfies § 48.415(4)(a)’s requirements. Rather, § 48.415(4)(a) unambiguously requires the Dispositional Order to be the court order that denies L.F.H. visitation to the child—which it did not do. Critically, the Department cites to no statute or case law—nor are we aware of any—to support its position that it can rely on an order outside of those specifically listed in § 48.415(4)(a) to satisfy that statute’s requirements.

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