SCOW does not overrule Steven H., except for the holding

St. Croix County Department of Health and Human Services v. Michael D. & Juanita A., 2016 WI 35, 05/12/2016, reversing an unpublished court of appeals decision; case activity

Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, finds itself roundly praised and deeply buried by our high court.

There are really two main issues at play over the 80 pages of writings: the legal question presented, and the latest installment of the ongoing public dispute between the justices over the workings of the court. The current round involves whether and how Justice Rebecca Bradley, appointed to the court after Justice Crooks’ death in September 2015, should participate in cases that were argued (and provisionally voted upon) when Crooks was on the court. We’ve covered the issue (previously raised in writings by Justice Abrahamson); what’s new here is that Justice Bradley, in a concurrence, defends her actions in each case. (¶¶75-84). Some heated accusations are made (Justice Bradley: Abrahamson’s discussion of her participation “serves only to perpetuate the diminished reputation of Wisconsin’s highest court” and her separate writings in various cases “delayed justice” (¶84); Chief Justice Roggensack: Justice Abrahamson “is using the prestige of her judicial office to further private interests,” (¶41); Justice Abrahamson: the question of a new justice’s participation should be “free from divisiveness or offensive posturing, personal attacks, and false accusations” (¶139) but this has all gotten to be pretty routine, so let’s turn to the merits, shall we?

One of the statutory grounds for a petition to terminate parental rights is “continuing CHIPS”: that is, the child has been found to be in need of protection or services and has been placed outside the home for six months or more “by one or more court orders,” the responsible agency has made a reasonable effort to provide the ordered services, and the parent has not complied complied with the conditions of safe return and is unlikely to do so in the following 9 months. Wis. Stat. § 48.415(2)(a). That same TPR statute adds one more proviso about those “court orders” placing the child outside the home: they must “contain[] the notice required by s. 48.356(2).” Wis. Stat. § 48.356, in turn, describes the notice the orders must contain: they must inform the parent that parental rights are at risk and must lay out the conditions for return of the child.

So again, one of the elements of a continuing CHIPS TPR is that the child have been placed out of the home for six-plus months “by one or more court orders… containing the notice.” The question is whether this element is satisfied where there have been multiple orders, some of which have not contained the notice. Here’s a proposed natural language approach: when we specify a group of “one or more” objects and say they have some property, we typically mean that they all have that property. Example: the seven dwarfs work in a mine. Would you say that operators of the mine are “one or more dwarfs named Sneezy?”

Neither would the court of appeals, in D.F.R. v. Juneau County, Department of Social Services, 147 Wis. 2d 486, 498-99, 433 N.W.2d 609 (1988). It seemingly found the meaning of the statute self-evident, stating without any pertinent discussion that continuing CHIPS can be a TPR ground “only if the statutory warning … is given each time an order places a child outside his or her home.”

The seven justices of the supreme court, however, saw things differently, in Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607. There, a unanimous court declared that “one or more orders” is not the same thing as “any,” “each,” “all” or “every” order. Id., ¶30. It did not really explain why. Still less did it point to any textual support for the rule it announced: that the statutes “require that the last order … placing a child outside the home, which must be issued at least six months before the filing of the petition to terminate parental rights, must contain the written notice.” Id., ¶3 (emphasis supplied). Given the absence of statutory foundation, the reader could be forgiven for wondering whether the “last order” rule was a bit result-oriented, given that the last order in Steven H. did contain the warnings, permitting the court to affirm the TPR.

Now comes Juanita A., who, though she had previously received the warnings, did not get them in the last order. Easy case, right? Wrong. New case, new facts, new rule! The majority opinion asserts that it is “adhering to the important principle of stare decisis” by not “overrul[ing]” Steven H. (¶3). Instead, it merely “withdraws” the sentence quoted above about the last order–i.e. what you might call the “holding” of Steven H.–and goes on to announce that any one prior order containing the warnings will do. (¶¶4, 39).

Before you accuse On Point of cynicism in its view of the result-driven nature of these decisions, take a look at Justice Prosser’s concurrence, which doesn’t just acknowledge such motivations, but celebrates them. While the majority insists that it is the “plain statutory language” that mandates its conclusion, Justice Prosser says otherwise. He calls Steven H. a “brilliant exercise of judicial craftsmanship” that “seized on a fact… to create a rule.” (¶71). In doing so, the opinion “deliberately chose not to follow the strict terms of the statute.” (¶72). Why? Because of “the court’s perception that unbending adherence to the statutory text was producing unconscionable results for children.” (¶70). Steven H.’s decision not to follow the statute “opened the door for the majority opinion in this case”–what he calls an “inevitable decision” that “illustrates why the facts make the law.” (¶¶72-73).

In dissent, Justices Abrahamson and Ann Walsh Bradley attack the majority’s notion of “stare decisis” as well as the substantive decision to depart from the “workable … settled” rule of Steven H. The dissent is concerned that the new rule fails to ensure that parents will get adequate notice, leading to confusion like that claimed by the mother here.