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CHIPS petition failed to establish probable cause that child is in need of protection and services

John M.S. v. Marcy J.S., 2013AP2644-FT, District 2, 3/12/14; court of appeals decision (1-judge; ineligible for publication); case activity

Father’s petition under § 48.13(4) was insufficient because it fails to provide reliable and credible information and contain facts alleging that (1) the child “is in need of protection or services which can be ordered by the court” and (2) the parent “is unable or needs assistance to care for or provide necessary special treatment or care” for the child, State v. Courtney E., 184 Wis. 2d 592, 600, 516 N.W.2d 422 (1994); § 48.255(1)(e).

While the petition alleges the child has a need for mental health treatment, the facts alleged in the petition show he is receiving treatment: “Despite the loaded characterization that Luke [the child] is ‘flip-flopping’ therapists ‘at the direction of Marcy,’ this is in fact a statement that Marcy is attending to Luke’s need for therapy/treatment. ‘Flip-flopping’ leads to no inference other than at some point prior to the filing of the petition Marcy either changed therapists for Luke altogether or began having him see more than one therapist.” (¶7). Nor does the petition show John is unable, or needs assistance, to provide care or treatment, or what efforts he has taken to address Luke’s particular needs; instead, it states he is unable to address Luke’s needs “unilaterally” because Marcy is commandeering schooling and treatment choices.” (¶3, 10). This shows John’s wish he had sole custody so he could make unfettered decisions about Luke, but he doesn’t allege a reasonable (or any) effort to obtain that goal in family court or why such an effort might not be sufficient. (¶10).

The legal issue resolved, the court does a bit of editorializing:

¶11      On the face of the petition, the only need Luke has which is not being addressed is the need for two parents to express their love for him by working with each other in a cooperative manner focused on Luke’s best interests. No court or government agency can provide that. Only John and Marcy can.

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