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Conditions for child’s return were sufficiently narrow to satisfy due process

State v. Kiwana L., 2014AP2306, District 1, 1/13/15 (1-judge decision; ineligible for publication); case activity

Kiwana L.’s substantive due process rights were not violated by the conditions set by the circuit court for return of her daughter Jasmine because those conditions were narrowly tailored to address her mental health issues; thus, the termination of her parental rights based on continuing CHIPS grounds under § 48.415(2) was proper.

Due process requires that the court-ordered conditions of return be narrowly tailored to meet the particular needs of a parent and a child, Kenosha County DHS v. Jodi W., 2006 WI 93, ¶51, 293 Wis. 2d 530, 716 N.W.2d 845, and the court holds that standard was met in this case:

¶32      … The conditions of return in this case—specifically, the conditions requiring her to show that she is able to supervise and care for Jasmine, to maintain a relationship with Jasmine, and to demonstrate an ability and willingness to care for Jasmine full time—were narrowly tailored to protect Jasmine while taking into account Kiwana’s mental health needs and financial hardships. See Wis. Stat. § 48.355(1) (requiring the court to “employ those means necessary to maintain and protect the well-being of the child … which are the least restrictive of the rights of the parent and child” when setting forth the conditions for return). …


¶35      … Kiwana admits that she failed to attend visitation for months at a time, citing her mental health issues and her need to seek treatment, financial hardships, and her move to Tennessee. While these hardships may have made it difficult for Kiwana to consistently visit Jasmine, Kiwana did not meaningfully take advantage of other forms of communicating with Jasmine, including contacting Jasmine by letter or by phone. Kiwana’s choice to abandon all contact with Jasmine for months at a time negatively impacted her relationship with Jasmine, such that she did not maintain a relationship with Jasmine and did not demonstrate that she was capable of caring for Jasmine on a full-time basis, as required by the conditions of return. As such, the circuit court did not err in finding Kiwana to be unfit pursuant to Wis. Stat. § 48.415(2). …

Note: The court chastises the GAL for failing to file a brief or a letter stating the GAL’s position on the issues raised on appeal. (¶1 n.1).

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