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Yet another challenge to applying the change in continuing CHIPS grounds to pre-amendment cases

Brown County DHS v. H.P., 2019AP1324 & 2019AP1325, District 3, 5/13/20 (one-judge decision; ineligible for publication); case activity

This case involves another challenge to the application of the new version of § 48.415(2)(a)3. in cases where the CHIPS order was entered before the effective date of the amendments. As in Dane County DHS v. J.R., 2020 WI App 5, and Eau Claire County DHS v. S.E., 2019AP894, slip op. recommended for publication (WI App May 13, 2020), the court of appeals rejects the challenges.

Since most of H.P.’s challenges are foreclosed by J.R. and S.E., we won’t repeat here what we’ve said in our respective posts on those two cases. H.P. does, however, elaborate on an argument S.E. made regarding whether the amendments to the statute worked a substantive change to the conduct for which her parental rights could be terminated, thus precluding application of the changes to her without fair notice. S.E., ¶¶20-23, discussing State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995).

First, she argues that CHIPS and TPR proceedings are “inextricably intertwined” because the TPR warnings given in the CHIPS case are an element of a TPR claim based on continuing CHIPS, apparently suggesting a change in one proceeding necessarily involves a change in the other. (¶14). The court disagrees, saying that however “interconnected” CHIPS and TPR cases may be, that doesn’t make the change made to § 48.415(2)(a)3. substantive. “It is well established that CHIPS cases and TPR cases are separate proceedings. See, e.g., J.R., 390 Wis. 2d 326, ¶¶23, 38…. In light of our case law on this issue, Haley has otherwise not shown how any ‘interconnectedness’ between CHIPS cases and TPR cases means that the change between the prior version and the amended version of § 48.415(2)(a) is substantive.” (¶15).

Second, H.P. argues she was deprived of her constitutional right to fair notice of the change in § 48.415(2)(a)’s elements because she was not given a reasonable amount of time to conform her conduct to what is required by law and could not show she would meet the conditions of return within nine months of the grounds hearing because her children had already been out of the home for fifteen months when she received TPR warnings reflecting the amended version of § 48.415(2)(a). Thus, in her view, the “grounds under the continuing CHIPS claim were complete.” (¶16). The court rejects this claim:

¶17     …[T]he change between the prior version and the amended version of Wis. Stat. § 48.415(2)(a) did not deprive Haley of her ability to conform her conduct to avoid a TPR. We emphasize that Haley, at all times, knew that her parental rights would be in jeopardy if the Department made reasonable efforts to provide the required services and she failed to act upon those services for an extended period of time, regardless of whether the TPR cases proceeded under the prior or the amended version of the statute. Other than arguing that the change between the statutes was a substantial change to her TPR proceedings—an argument that we have already rejected—Haley has not shown that she has a due process right to be prospectively given “a reasonable amount of time to conform her conduct to what is required by law.” See S.E., No. 2019AP894, ¶¶24-25.

In addition, this is an interlocutory appeal, which means the grounds hearing hasn’t happened and fact finding hasn’t been completed, and she hasn’t shown based on the current record that the petitioner would fail to prove its case under the prior version but could under the new version. (¶¶18-19). 

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