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TPR – Partial Summary Judgment

Marathon County Dept. of Social Services v. Lorie O., 2010AP2351, District 3, 12/21/10

court of appeals decision (1-judge, not for publication); for Lorie O.: Leonard D. Kachinsky; case activity

Summary judgment may be granted as to grounds for TPR, Steven V. v. Kelley H., 2004 WI 47, ¶6; but where the CHIPS order, on which alleged unfitness is premised, fails to set forth conditions for regaining contact with the child, summary judgment isn’t supported.

¶15      The CHIPS court’s failure to set forth in the orders the Wis. Stat. § 48.356(1) “conditions necessary for … the parent to be granted visitation” should have precluded the summary judgment finding of unfitness under Wis. Stat. § 48.415(4).  Section 48.415(4)(a) requires proof of an order containing “the notice required by [Wis. Stat.] § 48.356(2),” which, in turn, requires written notice of both the TPR warnings and the conditions required by § 48.356(1).  See Ponn P., 279 Wis. 2d 169, ¶23.

¶18      Plainly, the requisite condition or conditions are to be established for the parent to satisfy.  See, e.g., id., ¶10 (listing the four conditions the parents were to satisfy before they could be granted visitation); Steven V., 271 Wis. 2d 1, ¶9 (the circuit court “imposed a number of conditions that [the mother] would need to satisfy before any modification of the ban on visitation would be considered”).  “The notice required by [Wis. Stat. §] 48.356(2) … is meant to ensure that a parent has adequate notice of the conditions with which the parent must comply for a child to be returned to the home.”  Waukesha County v. Steven H., 2000 WI 28, ¶37, 233 Wis. 2d 344, 607 N.W.2d 607 (emphasis added).  The single condition imposed here was insufficient; that condition was imposed on either Kody or his psychologist.[8] Lorie was not provided any conditions to satisfy.

Lorie was incarcerated out-of-state, until 2017. Termination may be based on incarceration, but the mere fact of incarceration isn’t itself sufficient; instead, the parent must be given an opportunity to reestablish contact, circumstances notwithstanding,  Kenosha Co. DHS v. Jodi W. 2006 WI 93:

¶51      We therefore conclude that in cases where a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent’s incarceration, Wis. Stat. § 48.415(2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A contrary interpretation would render the statute unconstitutional. Compare Hezzie, 219 Wis. 2d at 862 (citation omitted).

The CHIPS order here failed to satisfy this requirement. The order did contain a condition, which left to the sole discretion of the child’s GAL whether further contact was in the child’s best interests. The court holds, in so many words, that this condition falls short of the requirement that the condition(s) must be aimed at the parent. There were no conditions for Lorie to satisfy, hence the CHIPS order was defective and couldn’t support termination.

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