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No substantive due process violation in TPR

Adams County DHHS v. D.S., 2015AP1937, District 4, 12/10/2015 (one-judge decision; ineligible for publication); case activity

D.S. appeals the termination of her parental rights to her daughter, raising a substantive due process challenge to the jury’s finding of unfitness and contending that the circuit court erroneously found termination to be in the child’s best interest.

Continuing CHIPS was the sole ground for the unfitness finding. Presumably relying on Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, which disallowed a termination founded on “impossible” conditions of return, D.S. argues that the ones here violated her substantive due process rights in three ways:

Specifically, D.S. argues that the County acted impermissibly when: (1) as one of the conditions of return, the County “indirect[ly]” required D.S. to live in Adams County, which was impossible for D.S. to meet; (2) as one of the conditions of return, the County required D.S. to move into housing where she paid the rent and was on the lease, which failed to take into consideration D.S.’s “economic reality;” and (3) the County relied on D.S.’s “poverty” “as the reason D.S. allegedly did not satisfy the conditions of return.”


The court of appeals asserts that D.S. did not explain how these conditions would deprive her of substantive due process even if they were imposed.  It goes on to find, at least as to the first two, that the record shows they were not. As to the claim about “poverty,” the court says that

D.S. fails to understand that the ability to meet a child’s basic needs is often tied to a parent’s ability to provide adequate housing, food, clothing, and basic health care for the child. We understand from the record that the County properly took into account D.S.’s financial status in considering whether she is able to meet J.S.’s needs. The record does not support D.S.’s argument that her poverty, standing alone, was a basis for terminating her parental rights to J.S. In any event, D.S.’s argument is undeveloped and therefore we do not consider it further.


The decision also rejects D.S.’s claim that the lower court erred in finding termination in the best interests of the child despite evidence of a substantial relationship with the mother. Noting that a substantial relationship is only one of the six statutory factors guiding the disposition determination, the court of appeals concludes the circuit court properly exercised its discretion. (¶11).

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