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COA rejects “as applied” challenge to amended TPR law, notes §893.825(1) requiring service on legislature

Dane County D.H.S. v. J.R., 2020 WI App 5; case activity

J.R.’s children were placed outside the home pursuant to two CHIPS cases. During the placement, the legislature changed the 4th element for the “continuing CHIPS” ground for termination of parental rights. When the County petitioned to terminate J.R.’s rights, it proceeded under the amended statute. J.R. objected to the retroactive application of the amended statute on statutory and due process grounds.

The statute at issue is  §48.415(2)(a). The court of appeals explained the difference between the prior and the amended versions this way:

¶13 . . . The fourth element in the prior version of the statute required that the petitioner show that there is “a substantial likelihood that the parent [would] not meet [the] conditions [established for the safe return of the child to the parent’s home] within the 9-month period following the fact-finding hearing.” We will refer to this as the “9-month failure to meet requirement.”

¶14     Effective April 6, 2018, 2017 Wis. Act 256, § 1, eliminated the 9-month failure to meet requirement and replaced it with the following language which now constitutes the fourth element of the continuing CHIPS ground:

[I]f the child has been placed outside the home for less than 15 of the most recent 22 months, [the petitioner must show] that there is a substantial likelihood that the parent will not meet [the] conditions [established for the safe return of the child to the parent’s home] as of the date on which the child will have been placed outside the home for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or was residing in a trial reunification home. WIS. STAT. § 48.415(2)(a)3. (2017-18); 2017 Wis. Act 256, §1.

J.R. argued that §990.04, which provides that a right of action created before the repeal of a statute remains in force notwithstanding the repeal, required the County to proceed under the prior version of the statute. The court of appeals rejected this argument on multiple grounds, one being that the TPR petitions at issue were filed, and the new CHIPS orders citing the amended language were entered,  after the legislature amended  §48.415(2)(a). Opinion, ¶25.

J.R. also argued that retroactively applying the amended statute to him violated his right to due process. In a 12-page, hard-to-follow analysis, the court of appeals rejected this claim. Opinion, ¶¶28-57. The short version is this: amended §48.415(2)(a) does not violate due process as applied to J.R. because it “does not apply retroactively in these cases” (though it was being applied retroactively in his case).  Opinion, ¶52. Also, applying the prior version of the statute allegedly would not change the outcome of J.R.’s case. Opinion, ¶¶51-57.

At least four TPR appeals have been stayed due to this appeal. The parties in those cases should read this decision closely. The court of appeals elected not to publish its decision, so perhaps a respondent in one of the other cases will have better luck, or receive a more cogent decision.

Of interest to appellate practitioners: In footnote 11, the court of appeals states that J.R. did not serve a copy of his “proceeding” on the AG, the speaker of the assembly, the senate president and majority leader, pursuant to amended §893.825(1) and (2). It also notes that the parties did not brief whether the statute even applies to this case, so it assumed that the statute does not apply. Along with his brief, J.R. filed a cover letter indicating that he served all of the required parties. If you’re worried about this issue, you might add a certificate of mailing at the end of your brief.

UPDATE: Having been apprised (yet again) by J.R.’s counsel that the poohbahs in the legislature were in fact served, the court of appeals has removed footnote 11 from the published opinion.

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