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TPR – Dispositional Orders, § 48.355(2)(b)1

Sheboygan Co. DHHS v. Tanya M.B. / William S.L., 2010 WI 55, reversing unpublished court of appeals decision; for Tanya M.B.: Paul G. Bonneson; for William L.: Thomas K. Voss

CHIPS order entered under § 48.355(2)(b)1 “shall contain … specific services to be provided”; subsequent TPR based on lack of compliance with CHIPS conditions requires that the responsible agency made a reasonable effort to provide the ordered services. The court now holds that TPR is supported even if the CHIPS “specific services” were not a specific part of the CHIPS order, at least if they are implicitly discernible from the conditions set for return of the child(ren).

¶33  As stated, we conclude that the dispositional orders contained “specific services,” as required by Wis. Stat. § 48.355(2)(b)1.[11] We so conclude because § 48.355(2)(b)1. does not require a CHIPS dispositional order to separately list each individual service that the Department is to provide so long as the Department is ordered to provide “supervision,” “services” and “case management” and the order also provides detailed conditions that the parents must complete in compliance with the dispositional order.

¶34  The detailed conditions directed at changing the parents’ conduct establish the specific services that the Department is to provide, either directly or through arrangements with others. …

¶35 The dispositional orders also directed the Department to assist the parents in completing certain programs ….

¶36 The detailed conditions of return set out specific case management services the Department was to provide. …

F.T. v. State, 150 Wis. 2d 216, 441 N.W.2d 322 (Ct. App. 1989) (delinquency proceeding: “failure to include the conditions in the written order and the failure to explain them to the child at the dispositional hearing vitiate the court’s authority to impose sanctions for their violation”), distinguished:

¶46 The reversal of the circuit court decision in F.T. came about because the lack of notice in the order contravened the purpose of Wis. Stat. § 48.355(2)(b)7. and (6)(a) (1987-88).  Stated otherwise, the decision in F.T. was driven by the failure of the circuit court to give notice to a juvenile in a delinquency proceeding, which failure of notice affected the juvenile’s right to know of the conditions he must meet and the conduct he must eschew to avoid court sanctions.  See id. at 227-28.

¶47 In contrast, the apparent purpose of Wis. Stat. § 48.355(2)(b)1. is to assure that the Department will provide those services necessary to assist parents in meeting the court ordered conditions for the return of their children.  Tanya and William do not claim that the CHIPS dispositional orders were insufficient to cause the Department to provide the necessary services, nor is there any proof that the Department was not diligent in doing so.  See section II.C. infra.  Accordingly, F.T. does not support William and Tanya’s claim that the termination of their parental rights should be reversed.

Although the parents additionally argue that the Department failed its burden of proof, they base this argument “solely on the assumption that the dispositional orders failed to order any services,” ¶57. Given the holding contrary to this assumption, it  follows inexorably that the proof was adequate. The court nonetheless details the facts as some length, “to demonstrate that the record is replete with credible evidence presented at trial that supports the jury’s finding that the Department ‘ma[d]e a reasonable effort to provide the services ordered by the court,'” ¶¶58-82.

Two-vote concurrence would uphold termination on the ground that parents forfeited their argument through lack of objection. Concurrence makes telling point that majority “inexplicably” abandons “judicial restraint.”

¶112 By deciding that the conditions for return satisfy the “specific services” requirement under Wis. Stat. § 48.355(2)(b)1., the majority has created a different statutory provision than the legislature adopted.  The majority opinion violates “the principle that it is the legislature that chooses the words of a statute.”[34] The majority thus usurps a power not vested in this court and offends the fundamental doctrine of separation of powers embodied in the Wisconsin Constitution.[35]

Wait! It gets better, the concurrence hurling this accusation: “In its result-oriented effort to save the dispositional orders here, the majority seemingly allows future dispositional orders to be interpreted to impose unfunded mandates on the county,” ¶119 The concurrence certainly has an important, substantive point to make, but the pointed rhetoric is too obvious to pass by. “Result-oriented” is a harsh accusation (therefore best avoided altogether by the mere practitioner), its underlying sensibility captured quite nicely by Judge Fine, dissenting, in Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis.2d 230, 259, 525 N.W.2d 59 (Ct. App. 1994):

The law must be sufficiently predictable so that men and women can conduct their business with the assurance that the rules are not going to change in mid-stream. This requires that judges follow precedent. We must not, like the apocryphal “Eastern despot” mentioned by Sir Frederick Pollock and Frederic William Maitland in the introduction to their seminal treatise on the common law, “deal with every case according to the impression of the moment.” 1 F. POLLOCK & F.W. MAITLAND, THE HISTORY OF ENGLISH LAW xxvii (2d ed. 1899). It is the majority’s “impression” that Lake Bluff should win this case; and so it does. [3]

[3] According to Louis Nizer, Justice Benjamin Nathan Cardozo “defined judicial process as the instinctive reaching of a conclusion and with subsequent research and reasoning to justify it.” LOUIS NIZER, MY LIFE IN COURT 444 (1961). That has it backwards. At times, of course, “subsequent research” contradicts the “instinctive conclusion” or the “impression of the moment.” When that happens, the result-oriented judge bends precedent. … Although I admire Cardozo, as we are all taught in law school to do, his result-first, reasoning-later approach is a dangerous jurisprudential methodology to adopt….

Ouch. (By the way, the supreme court subsequently reversed the Lake Bluff majority.) For a much blunter expression, see State v. Jewitt, 500 A.2d 233 (1985) (“Our decisions must be principled, not result-oriented.”) So, you can easily see where someone might take offense. Why harp on this seeming distraction? Two reasons. First, it signifies that during pitched rhetorical battles, the personalities on the court aren’t going to let the possibility of bruised feelings get in the way of candor; the deep ideological divide on the court isn’t going to be masked by prettified rhetoric. Second, there might be a bit of tu quoque at work: the accusation of an activist, result-oriented jurisprudence is one often leveled by so-called conservatives at so-called liberals; here, it is the liberal wing (or what’s left of it) raising that particular alarm. But don’t think that the concurrence’s criticism is merely rhetorical. The concurrence makes a very good case that the majority not only imposes “unfunded mandates” on local agencies but “offers only hazy guidelines as to what the obligations are, how they may be adequately satisfied, and who pays for the services,” ¶124. And, of course, the hazier the guideline the easier it might be in any given case to argue compliance.

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