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COA applies and rejects Jodie W. based challenge to “continuning denial” based TPR order

Jackson County DHS v. R.H.H., 2023AP1229-1232, 11/16/23, District IV (one-judge decision, ineligible for publication); case activity

In Kenosha Cnty. DHHS v. Jodie W., 2006 WI 93, ¶56, 293 Wis. 2d 530, 716 N.W.2d 845, the court overturned a TPR order premised on a parent’s failure to meet “an impossible condition of return, without consideration of any other relevant facts and circumstances particular to the parent.” R.H.H. argued that he was likewise subject to an “impossible” condition of return because the dispositional order that denied him placement or visitation with his four children required him to complete sex offender treatment and domestic violence programming. The court rejects his due process-based claim, for multiple reasons, including that R.H.H., failed to introduce evidence to support his assertions that his confinement in prison or his pending criminal appeal made it “impossible” for him to meet his conditions of return. (Op., ¶21).

After the county moved for summary judgment on grounds, R.H.H. argued that a finding that he was unfit on grounds of “continuing denial” would violate his due process rights because the dispositional orders at issue placed him in an “impossible situation.” Specifically, R.H.H. argued that because he was imprisoned on a sexual assault conviction, and because he was actively appealing the conviction, forcing him to complete sex offender treatment “jeopardize his appeal,” since “it is known that one must” “admit to any sex offenses” in order to complete treatment.

The court of appeals rejects R.H.H.’s argument for two reasons. First, trial counsel’s assertions were not supported by “evidentiary material” sufficient to create a genuine issue of material fact necessary to oppose the county’s prima facie case for summary judgment. (Op., ¶24). Second, the court holds that even if R.H.H.’s factual assertions had been supported by admissible evidence, Jodie W.’s impossible conditions defense is only applicable where a finding of unfitness is based “solely” on the inability to complete impossible conditions of return. (Op., ¶38) (citing Waukesha Cnty. DHHS v. Tedodoro R., 2008 WI App 16, ¶24, 307 Wis. 2d 372, 745 N.W.2d 701).

The court also rejects R.H.H. challenges to the court’s dispositional order. R.H.H. argued that the circuit court erroneously exerised its discretion by relying on a 2013 psychological evaluation at the dispositional hearing. Specifically, R.H.H. argued that the dated evaluation was based on a prior conviction that was later vacated, but the court upholds the determination that the evaluation was still relevant to disposition and holds that the circuit court did not erroneously exercise its discretion by admitting it at disposition. (Op., ¶¶49-52).

While it seems fair to categorize R.H.H.’s constitutional claims as longshot extensions of Jodie W. to a “continuing denial” based TPR order, the court’s extremely narrow reading of Jodie W. doesn’t seem to hold up, even if the court is bound by its own decision in Teodoro E. The court reasons that because it was not “impossible” for R.H.H. to complete domestic violence programming and because R.H.H. simply disclaimed a need for the program, the finding of unfitness wasn’t based “solely” on an impossible condition. However, only if R.H.H. met all of the conditions of the dispositional order would he have been able to earn placement or visitation of his children. So, how does the fact that some conditions were theoretically possible change the fact that under no circumstances did was it possible for R.H.H. to meet the conditions of return?

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