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CHIPS proceedings not precluded by prior JIPS proceedings

Fond du Lac County DSS & W.A.B. v. W.G.B. & K.L.B., 2017AP2468, 12/5/18, District 2 (one-judge decison; ineligible for publication); case activity

W.A.B., a juvenile, was alleged to be delinquent for threatening her mother with a knife. She was found not competent to proceed, though, and so DSS filed a JIPS petition. See Wis. Stat. § 938.13(14). That petition resulted in an order placing W.A.B. outside the home, to have contact with her sister only when the family’s counselor thought it appropriate.

A month after that order, DSS filed a CHIPS petition alleging that the sisters’ parents were physically and emotionally abusing them, failing to obtain treatment for them, and keeping them from seeing each other. The parents sought, and the circuit court granted, dismissal based on issue and claim preclusion.  DSS and W.A.B. appealed, and the court of appeals now reverses.

Readers a few years removed from their Civil Procedure courses will appreciate the court’s recitation of the basics of the two types of preclusion. (¶¶6, 13-15). For this case, the crucial feature of each doctrine is that the issue raised in the new proceeding will only be declared precluded–that is, not able to be litigated–if it’s basically the same issue that was, or could have been, decided in the prior proceeding.

The court of appeals holds that the thrust of the JIPS proceeding here was just not the same as that of the CHIPS proceeding. Per the court, the JIPS proceeding was fundamentally about something W.A.B. had done–threatened her mother–while the CHIPS proceeding was about what the parents were doing, and failing to do. Also, the statutory purposes of the JIPS and CHIPS regimes are different–with JIPS aimed at protecting the public from, and rehabilitating, the child, and CHIPS aimed at a protecting him or her. (¶¶7-9).

Moreover, while there’s some factual overlap in the cases, there’s really not that much. Both the JIPS and CHIPS actions involved W.A.B.’s separation from her sister–the JIPS order partly caused it, and the CHIPS petition says it’s harming the girls. But the CHIPS petition is about a lot more: the parents’ alleged abuse and failure to seek treatment. Thus, says the court, “while the dispositions might overlap in some areas, it does not mean that one may preclude the other where the claims are different. The CHIPS cases may proceed.” (¶¶16-17).

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