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SCOW holds 2018 amendment to TPR statute applies to 2016 case

Eau Claire County DHS v. S.E., 2021 WI 56, affirming a published court of appeals opinion, 2019AP894, 6/10/21, case activity

In a 4-3 decision, SCOW holds that a 2018 amendment to the TPR statute, which imposed a more exacting timeframe for parents to preserve their parental rights, applied to a CHIPS order entered in 2016 when the statutory timeframe was more lenient. So much for the plain language of the statute and due process.

In August 2016, a circuit court found “Tyler” to be a child in need of protective services. As required by §48.356(2), the circuit court’s order listed continuing CHIPS as a possible ground for terminating “Sophie’s” parental rights.

Per that order, DHS could terminate Sophie’s parental rights by proving both that she had not yet satisfied the conditions necessary for Tyler to be returned to her and that there was a substantial likelihood she would not satisfy them within 9 months of her trial. See §48.415(2)(a)3 (2015-2016).

In April 2018, the legislature amended §48.415(2)(a)3 so that the circuit court no longer had to consider whether a parent could meet the conditions of safe return of the child during the 9 months after trial, if the child had already been placed outside of the home for 15 of the most recent 22 months. See §48.415(2)(a)(2017-2018). In short, the legislature made the time frame for preserving parental rights more exacting (as the dissent puts it).

After the amendment, DHS petitioned to terminate Sophie’s parental rights. Then it amended the petition to include continuing CHIPS as a ground, and for the first time -cited the 2018 version of the statute. Sophie objected and argued that the 2016 version of the statute applied both as a matter of statutory construction and as a matter of due process.

The majority opinion, written by R.G. Bradley and joined by the other 3 conservatives, stressed the legislature’s “paramount goal” of protecting the welfare of children and eliminating the unreasonable periods of times it takes for parents to get their acts together so that their children may return to them safely. Opinion, ¶1.

As to Sophie’s case, the majority noted that the 2016 standard CHIPS order cautions parents that if any other grounds for a TPR existed then or in the future their parental rights could be taken from her. Thus Sohpies was put on notice that different grounds could support a TPR action. The order also told her what conditions she had to satisfy in order to get Tyler back.  She received the statutorily required notice. She didn’t comply. End of statutory construction argument. Opinion, ¶¶27-30.

Sophie’s due process argument also failed. The majority agreed that the 2018 version of the statute could not apply retroactively. But it held that the statute had no retroactive effect because the amendment did not alter any legal consequences for her. Opinion, ¶¶35-37.

The majority also distinguished State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995), the case supporting Sophie’s constitutional argument. Patricia A.P. held that the State violated Patricia’s due process rights when it gave her notice of the grounds for terminating her parental rights that were substantially different from grounds it used to terminate them. The majority said that in Sophie’s case, the grounds never changed. Opinion, ¶¶37-39.

Justice Dallet wrote the dissent, which the liberals joined. She would hold that both the statute and due process require the court to apply the 2016 statute, rather than the 2018 amendment to Sophie’s case. She stressed that while the TPR statute is meant to protect the welfare of children, it is also designed to protect the parents’ fundamental liberty interest in the care and custody of their children and to ensure that they have a full and fair opportunity to preserve the unity of their family.  Giving parents constitutionally adequate notice of the correct time frame for meeting conditions for the return of their children is essential to achieving this goal. Parents involved in TPR proceedings often have challenges relating to mental health, substance abuse, or financial insecurity, which require long-term planning and sustained treatment. Dissent, ¶¶42-55.


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