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Defense win! TPR reversed due to insufficient notice of grounds for termination

Brown County v. J.V., 2022AP532, 7/28/22, District 3 (1-judge opinion, ineligible for publication); case activity

In a modified CHIPS dispositional order, the circuit court stated that it was suspending Jennifer’s visitation rights to her son, subject to her completing certain conditions. The court did not orally warn her that her parental rights could be terminated if her visitation rights weren’t reinstated within 1 year. Nor did the written order indicate that her rights could be terminated based on continuing denial of visitation under §§ 48.415(4) and 48.356(2).

Section 48.356, which prescribes the circuit court’s duty to warn parents of any TPR ground that might be applicable to their case, requires both an oral warning and a written warning. Section 48.356(1) says:

the court shall orally inform the parent . . .  who appears in court of any grounds for termination of parental rights under § 48.415  which may be applicable and of the conditions necessary for the child . . . to be returned to the home of the parent granted visitation.

Then §48.356(2) requires any written order to notify the parent “of the information specified under sub. (1).”

Jennifer did not receive the required oral notice. So this case centers on the written notice provided to her. Apparently, the county sent her a form notice that lists 13 potential grounds for termination of parental rights. The county placed an “X” by three of those grounds. It did not place an “X” next to the “continuing denial of visitation” ground. But that ground became the basis for the termination of her parental rights.

The county argued that the notice was sufficient because the general language at the top of the notice form states that “those [grounds] that are check-marked may be most applicable to you, although you should be aware that if any of the others also exist now or in the future, your parental rights can be taken from you.” Opinion, ¶17

The court of appeals strongly disagreed. The legislature chose to define the necessary information to be provided in the written notice as the information required by (1). In (1) it defined the necessary information as:

¶18 . . . “any grounds for termination of parental rights under § 48.415 which may be applicable.” Sec. 48.356(1) (emphasis added). Notably, the statutory direction is not to inform a parent of all grounds that exist under the law upon which a termination may be granted. If that were the case, merely including a plain copy of § 48.415, which lists every possible ground for a TPR, would suffice. Instead, the language employed plainly contemplates that such a notice consider the applicability of particular grounds, albeit with the inclusion of the language “may be” so as to reflect the forward-looking analysis inherent in considering an uncertain future. Our analysis must give meaning to all of the language in these governing statutes. Otherwise, a parent is not given the notice—as intended by our legislature—necessary to give that parent an opportunity to conform his or her conduct to avoid having the “state exercise[] its awesome power to terminate parental rights.” Waukesha County v. Steven H., 2000 WI 28, ¶25, 233 Wis. 2d 344, 607 N.W.2d 607. (Emphasis in original).

The court of appeals drew from several earlier cases that lawyers should review if dealing with this problem:  D.F.R. v. Juneau Cnty. Dep’t of Soc. Servs., 147 Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988) and M.P. v. Dane County Department of Human Services, 170 Wis. 2d 313, 488 N.W.2d 133 (Ct. App. 1992).

For a remedy, Jennifer requested a reversal of the circuit court’s summary judgment order and entry of summary judgment on the “continuing denial of visitation” ground in her favor. She got it because the court of appeals held that the record conclusively establishes the county cannot prove that it gave Jennifer the notice required under § 48.514(4).

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