≡ Menu

Sec. 48.415(2)3 applies to CHIPS orders before parent has exhausted appellate rights

State v. E.P., 2015AP1298-1300, 10/1/15, District 1 (1-judge opinion, ineligible for publication); case activity

A jury found grounds to terminate E.P.’s parental rights because his kids were in continuing need of protective services. The court of appeals rejected E.P.’s arguments that § 48.415(2)’s “6 months or longer” period (i.e. the time a child has been placed outside the home per a CHIPS order) begins to run only after he exhausted his appellate rights. The court also declined to order a new trial in the interests of justice.

Re whether the word “orders” in § 48.415(2) means only final orders, the court of appeals held:

E. P.’s interpretation would, in effect, give E. P. six additional months after the CHIPS order became final in October 2014 to work on his conditions of return before the State may petition for termination on the continuing CHIPS ground, despite the fact that the CHIPS No. 2015AP1298 2015AP1299 2015AP1300 8 order was entered in June 2013 and that the children were removed from his care in August 2012.  Slip op. ¶16.

E.P. relied on Monroe County v. Jennifer V., 200 Wis. 2d 678, 548 N.W.2d 837 (Ct. App. 1996), which held that a conviction is not a conviction under §48.415(5)(a) until all appellate rights are exhausted. But Jennifer V. concerned whether terminating a person’s appellate rights before the exhaustion of appellate rights would cause serious problems if the conviction were reversed. That concern is not present in E.P.’s case. Slip op. ¶18. “Moreover, adopting E. P.’s interpretation would be contrary to the legislative intent of providing permanence and stability in family relationships and eliminating unreasonable wait times for parents to correct the conditions that prevent children’s safe return to the family.” Slip op. ¶19.

Re E.P.’s request for a new trial in the interests of justice, the court of appeals held:

E.P. fails to demonstrate to a reasonable certitude that a new trial would probably effect a different result for several reasons. First, the allegedly improper questions by the guardian ad litem constituted a very small portion of the five-day trial, during which the jury heard testimony from numerous witnesses as to E. P.’s parenting history and likelihood of meeting the conditions of return set out in the CHIPS orders within nine months after the trial. Second, the circuit court properly instructed the jury at the end of trial that questions of the attorneys are not evidence . . . Slip op. ¶22.

Third, there is ample evidence in the record to support the jury’s findings as to the continuing CHIPS grounds for termination of E. P.’s parental rights, particularly the fourth element of proof: “[T]hat the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 9-month period following the fact-finding hearing . . .See Wis. Stat. §48.415(2). Slip op. ¶23.


{ 0 comments… add one }

Leave a Comment