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Termination of rights of cognitively disabled parent didn’t violate due process

State v. Lawanda R., 2013AP1661, District 1/4, 1/16/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly found that a parent with serious cognitive disabilities (she “functions at the level of a child less than ten years old” (¶8)) was unfit under § 48.415(2) on the sole basis that she failed to meet the conditions established by a continuing CHIPS order for the return of Will, her severely autistic son. The mother argued that under Kenosha County D.H.S. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, the termination of her parental rights violated due process because her cognitive limitations made it impossible for her to meet the conditions of the CHIPS order. The court of appeals disagrees.

Lawanda asserts that Jodie W. stands for the proposition that “return condition[s] that [are] impossible for a parent to meet [are] not narrowly tailored and therefore violate[] the parent’s right to substantive due process” (¶17), but the court reads Jodie W. as holding only that incarceration by itself does not demonstrate unfitness, and that the due process violation arose in that case because the circuit court found the mother to be unfit without regard to her actual parenting activities and without evidence that the conditions of return were created or modified specifically for the mother. (¶¶18-19, citing Jodie W., ¶¶49, 52). Thus:

¶20      Jodie W. dealt with the limited situation of an incarcerated parent who was unable to meet the conditions of return solely because of her incarceration. Contrary to Lawanda’s suggestion, Jodie W. does not stand for the proposition that in all situations in which a parent is unable to meet conditions of return, a finding of unfitness on the basis that the parent failed to meet those conditions violates the parent’s substantive due process rights. Furthermore, I read the supreme court’s mandate in Jodie W., that the conditions for return of the child be narrowly tailored as not being exclusively related to the ability of the parent to meet the conditions, but rather as also being based upon the requirements of what is necessary to adequately protect the child. Within that context, the conditions should reflect the individual ability of the parent, but only to the extent that the conditions can do so and still adequately protect the child.

¶21      Lawanda argues that the conditions of return and the circuit court’s evaluation of her failure to meet those conditions were not narrowly tailored to meet the court’s compelling interest in protecting Will from an unfit parent. However, Lawanda does not explain how or why the conditions were not narrowly tailored to her and Will’s situation, nor does she explain that there are any requirements which might be tailored to her particular cognitive limitations that would still adequately protect Will.

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