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Return conditions not impossible, TPR verdict sustained

State v. K.M., 2016AP421, 5/17/2016, District 1 (one-judge decision, ineligible for publication); case activity

The court of appeals rejects a mother’s two challenges to the termination of her parental rights.

The TPR petition alleged continuing CHIPS as the unfitness ground. (¶3). The mother’s first claim is that some of the conditions of return in the CHIPS order were impossible for her to meet and thus violated her substantive due process rights. See Kenosha County Department of Human Services v. Jodie W., 2006 WI 93, ¶56, 293 Wis. 2d 530, 716 N.W.2d 845. Specifically, she contends that child protective services prohibited her from communicating with the child, so she could not fulfill the visitation condition. (¶18). The facts recited in the opinion show that the agency did suspend her visits, but the court seems to conclude that the mother’s actions led to this state of affairs:

S.J.’s argument asks us to take a limited view of the record. While the record does establish that S.J. did make some effort to maintain a relationship with the child, it also demonstrates that S.J. failed to adequately care for her son’s mental health conditions and failed to understand how to interact with her child, prompting two therapists to suggest suspended visits. S.J. still had opportunities to communicate with her child by sending letters and contacting the foster family, but failed to do so. According to Dr. Hintz, the child became violent when learning that visitation would resume, suggesting that contact with S.J. was a “trigger” for the child’s disturbing behavior. The record also establishes that before visitation was suspended, S.J. failed to regularly attend visitation with her son. Accordingly, S.J.’s substantive due process rights were not violated.


The mother also argues that there was insufficient evidence that the agency made a reasonable effort to provide her with necessary services, as Wis. Stat. § 48.415(2)(a)2. requires. The “any credible evidence” standard of review dooms this claim:

S.J. argues that the evidence is “replete with example[s] of the [BMCW] failing to work with S.J. to help her meet her conditions of return.” S.J. points to a statement by the circuit court, in which the court stated: “I won’t make any secret about it, had this case been tried to the Court, the Court would have answered the fourth question on the special verdict no…. The jury spoke differently…. And it’s not enough to set aside the jury verdict, but it’s enough for me to express my opinion to the Court.” … Indeed, S.J. points to evidence which contradicts the jury’s findings. However, as the circuit court noted, “it’s not enough to set aside the jury verdict.” The record shows that BMCW representatives provided S.J. with multiple psychological and psychiatric referrals, offered transportation for visitation, and provided referrals for parenting classes, anger management, housing assistance, and job assistance, among other things. The evidence supports the jury’s verdict.


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