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Substantive Due Process – Grounds for Termination – Impossible to Meet Condition for Return

Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order

Issue: Whether finding of parental unfitness in a TPR, grounded on a condition for the child’s return that was impossible to meet when imposed (namely that the parent set up a suitable residence within 12 months even though she was incarcerated and would not be released before then), violates substantive due process.


¶49      Like the Nevada Supreme Court, we similarly conclude that a parent’s incarceration does not, in itself, demonstrate that the individual is an unfit parent. See J.L.N., 55 P.3d at 956. We further conclude that a parent’s failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground for finding a parent unfit.Id. These conclusions are required by the Wisconsin and United States Constitutions, which preclude a state from terminating a parent’s fundamental right without an individualized determination of unfitness. Stanley, 405 at 649.

¶50      Because we interpret statutes to be constitutional if possible, Hezzie, 219 Wis. 2d 848 at 862 (citation omitted), we also conclude that Wis. Stat. § 48.415(2) requires the court to evaluate the particular facts and circumstances relevant to the parent and child involved in the proceeding. Our conclusions do not render a parent’s incarceration irrelevant. We simply conclude that a parent’s incarceration is not itself a sufficient basis to terminate parental rights. Other factors must also be considered, such as the parent’s relationship with the child and any other child both prior to and while the parent is incarcerated, the nature of the crime committed by the parent, the length and type of sentence imposed, the parent’s level of cooperation with the responsible agency and the Department of Corrections, and the best interests of the child. See P.P., 279 Wis. 2d 169, ¶30 (recognizing that the termination of parental rights of the incarcerated parent was “grounded in a lack of fitness on the part of [the parent]. . . . [T]he finding was based on [the parent’s] sexual assault and extreme abuse of his own children.”). See alsoJ.L.N., 655 P.3d at 960.

¶51      We therefore conclude that in cases where a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent’s incarceration, Wis. Stat. § 48.415(2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A contrary interpretation would render the statute unconstitutional. Compare Hezzie, 219 Wis. 2d at 862 (citation omitted).

Because the trial court relied for termination solely on Jodi’s incarceration, without considering other factors relevant to her circumstances, her right to substantive due process was violated, ¶¶52-56. In other words, both the court-ordered conditions for return and also the trial court’s evaluation of Jodi’s failure to meet those conditions, were not narrowly tailored to meet the State’s interest in protecting the child, ¶55

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