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As-applied substantive due process challenge to TPR ground rejected

Dane County DHS v. J.D., 2015AP1800, District 4, 11/19/2015 (one-judge decision; ineligible for publication); case activity

One of the statutory grounds for a finding of unfitness leading to termination of parental rights is the court-ordered denial of placement or visitation for at least one year. Wis. Stat. § 48.415(4). In Dane County DHS v. P. P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, the supreme court rejected a facial challenge to this ground but left open the possibility that, as applied, it might violate substantive due process in a particular case. Per the court of appeals, this is not that case.

The county alleged that J.D. had been denied contact with her child D.O. under a CHIPS order for more than a year, and moved for summary judgment as to grounds. (¶¶2-4). J.D. responded by moving to dismiss, arguing that § 48.415(4) “as applied to the facts of this case, constitutes a violation of [her] right to Substantive Due Process.” (¶5). The circuit court denied J.D.’s motion, granted summary judgment on grounds, and ultimately terminated her parental rights. (¶6).

On appeal, J.D. maintains her as-applied challenge based on language in P.P. As the supreme court there noted, a parent has a fundamental liberty interest in parenting his or her children; any statute impinging on that interest must satisfy strict scrutiny. 279 Wis. 2d 169, ¶20. The TPR regime does so only if it is narrowly tailored to advance the compelling interest in “protect[ing] children from unfit parents.” Id. P.P. had argued that the orders underlying the subs. (4) grounds are entered based on the best interest of the child, rather than any finding of parental unfitness; hence the statute is not narrowly tailored and must fall. Id., ¶24. The court rejected this argument, positing that the procedural steps before and after the entry of an order denying contact require “findings [that] involve an evaluation of a parent’s fitness.” Id., ¶32.

The court also turned back P.P.’s claim that a parent should be allowed to show the reasons for not achieving contact; it noted that he had pled no contest to the grounds and thus could not challenge the validity of the order. Id., ¶25. The court expressly did not decide whether another parent might be able to prevail on such a claim, stating that it would “not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case.” Id.

Here, the court rejects J.D.’s as-applied challenge, and each of her four proffered “reasons”:

First, [P.P.]’s visits [in the underlying CHIPS proceeding] were suspended after he pled to felony child abuse, while J.D. agreed to suspend her visits so as to allow her to implement the agreed upon plan to resume visits through family therapy.

Second, [P.P.] [pled] no contest to the petition for termination of parental rights, while J.D. contested the petition.

Third, [P.P.] did not make any effort to resume visits while J.D. made a successful effort to comply with the plan to resume visits.

Fourth, the record [was] silent on the Department’s actions in [P.P.] apart from obtaining an order suspending visits, while J.D.’s Social Worker provided misinformation to the CHIPS Court that seriously impaired J.D.’s efforts to resume visits.


As to each “reason,” the court either determines that it does not matter or that J.D. has not made an adequate factual showing, or both. (¶¶13-18).

In a footnote, the court observes that it does not address the county’s claim that “J.D.’s challenge is an impermissible collateral attack on the underlying CHIPS proceeding.” The briefs being confidential, we can’t know the substance of the county’s argument. But any such argument would seem difficult to square with P.P., which held that the parent’s no-contest plea “relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children” and suggested the possibility of an “as-applied challenge to the validity of” such an order. 279 Wis. 2d 169, ¶25 (emphasis added). See also ¶25 n.6 (substantive due process challenge may not be subject to previously stated rule that “there is no defense to § 48.415(4) based on [a] parent’s explanation for noncompliance with the order”).

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