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Amendment to continuing CHIPS TPR grounds applies to CHIPS orders issued before amendment

Eau Claire County DHS v. S.E., 2020 WI App 39, petition to review granted, 10/21/20, affirmed, 2021 WI 56; case activity

Following up on the decision issued in Dane County DHS v. J.R., 2020 WI App 5, the court of appeals rejects some additional challenges to the changes 2017 Wis. Act 256 made to the continuing CHIPS ground for terminating parental rights.

S.E. (“Sophie”) has a son who was subject to a CHIPS order beginning in 2016. At the time the order was entered, one of the elements of the continuing CHIPS ground  a TPR petitioner had to prove was that there was a substantial likelihood the parent would not meet the conditions for return of the child within 9 months after the grounds hearing, § 48.415(2)(a)3. (2015-16). Effective April 2018, Act 256 eliminated that element if the child had already been placed out of the home for at least 15 of the most recent 22 months, § 48.415(2)(a)3. (2017-18). In June 2018, after Act 256 took effect, the county filed a TPR petition against Sophie. (¶¶5-6, 8-9).

Sophie argues her case should be tried under the prior version of the statute in effect at the time her CHIPS order was issued, not the amended version, because applying the amended version retroactively to her violates her due process rights to parent her child and to fair notice of the grounds for termination. (¶7). The court of appeals rejects these arguments as foreclosed by J.R., which held that applying the new version of the statute to CHIPS proceedings begun before the amendment was not a retroactive application. (¶¶11-19).

Sophie raises an additional due process argument not addressed in J.R., however: that applying the amended version of § 48.415(2)(a)3. violates procedural due process under State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995), which held that once a parent is warned that parental rights to a child may be lost because of the parent’s future conduct, a substantial change in the type of conduct that may lead to the loss of rights without notice to the parent is fundamentally. (¶¶20-25). The court disagrees that Act 256 made a substantial change in the conduct that could lead to termination:

¶23     …[T]he change between the prior version and the amended version of the statute is not substantive, including in the sense articulated in Patricia A.P. Whereas the prior version required a prospective determination of whether a parent was likely to meet the conditions for return of the child within the nine months following the fact-finding hearing, the amended version eliminates the need for a prospective analysis as long as the child has already been outside the parent’s home for “15 of the most recent 22 months.” Compare WIS. STAT. § 48.415(2)(a)3. (2015-16), with § 48.415(2)(a)3. (2017-18). In cases where the out-of-home placement has already satisfied the 15-out-of-22-month timeframe, the amended statute merely requires the petitioner to prove that the parent has failed to meet the conditions for the safe return of the child. See § 48.415(2)(a)3. (2017-18). Under both versions of the statute, however, the conduct at issue is the same—the parent’s ability or inability to meet the conditions for return of the child during an extended period of time—and, under both versions, the child must have been placed outside of the parent’s home for at least six months. Thus, the legislature’s amendment of § 48.415(2)(a)3. did not substantially change the type of conduct that may lead to the termination of Sophie’s parental rights.

Sophie also makes a statutory interpretation argument not addressed in J.R. She asserts that under the plain meaning of the amended version of § 48.415(2)(a)3., the 15-out-of-22 month timeframe begins with the CHIPS order including the 15-out-of-22 month warning, not a prior order that does not include the warning. In her case, there was no CHIPS order with a warning about the amended element until October 2018; so, she argues, the 15- out-of-22-month timeframe must begin in October 2018, not back in 2016, when the first CHIPS order was issued. (¶¶26-41). The court of appeals reaches a different conclusion:

¶32     Reading Wis. Stat. § 48.356 in conjunction with Wis. Stat. § 48.415(2)(a)1. and 3., the plain meaning of these statutory provisions permits use of the amended version of § 48.415(2)(a) in Sophie’s TPR proceedings. Nothing within §§ 48.356 or 48.415(2)(a) prohibits a TPR petitioner from relying on a CHIPS order issued before the legislature amended §48.415(2)(a)3., regardless of the nature of the continuing CHIPS warnings regarding a potential TPR contained in that order. What matters is the parent having been warned that his or her parental rights could be terminated on the basis of a continuing CHIPS—a child being protectively placed outside of the parent’s home for an extended period of time.

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