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TPR dismissed because final placement order lacked notice of conditions for return and grounds for termination

St. Croix County DHHS v. Michael D. & Juanita A., 2014AP2431, District 3, 1/16/15 (1-judge decision; ineligible for publication), petition for review granted 4/16/15, reversed, 2016 WI 35; case activity

The court of appeals holds that the notice requirements of §§ 48.415(2)(a)1. and 48.356(2) were not satisfied because the last order concerning out-of-home placement of Juanita’s child did not include the written notice of the applicable grounds for termination or the conditions for Matthew’s return. The County therefore failed to meet its burden of proof on the continuing CHIPS ground under § 48.415(2)(a)1. and the termination order is vacated and the TPR petition dismissed.

Juanita’s child Matthew was placed in a foster home under a CHIPS order in August 2011. The placement order was revised in October 2011, and the written order incorporating those changes included the conditions for Matthew’s return and a notice of the grounds of termination, as required by § 48.356(2). There were extensions of the order in December 2011 and September 2012 and permanency plan orders in June 2012 and June 2013, but the October 2011 order was the first and only order to incorporate the written notices required by § 48.356(2). The County filed a TPR petition in June 2013 and Juanita’s rights to Matthew were ultimately terminated. (¶¶3-5).

Juanita argued that under Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607 N.W.2d 607, the last order before the TPR petition must include the written notices required by § 48.356(2). But the County cited the seemingly conflicting holding of Waushara County v. Lisa K., 2000 WI App 145, 237 Wis. 2d 830, 615 N.W.2d 204, which read Steven H. to require “adequate notice” and found that standard met despite the fact the last order didn’t include the conditions for return because, over five hearings, the parent received notice of the requirements she had to meet on four occasions, the conditions of return on three occasions, and a notice or warning of the grounds for the termination on four occasions. The court holds it must follow Steven H.:

¶15      Here, TPR proceedings were initiated after Juanita was warned in writing of the applicable grounds for termination and the conditions for return on only one occasion—importantly, not in the last order affecting placement prior to the petition for involuntary TPR. Despite the circuit court’s assertion that Juanita was provided adequate notice because of the number of proceedings conducted regarding Matthew’s placement, Wis. Stat. § 48.415(2)(a)1. explicitly requires more than oral warnings to satisfy the grounds for involuntarily terminating parental rights.[9] Lisa K. notwithstanding, we conclude that Steven H. directly controls the resolution of this case, and accordingly, we follow the supreme court’s unequivocal precedent mandating that the last order contain the statutorily prescribed notice. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (court of appeals may not overrule, modify, or withdraw language from a prior published opinion). Written notice describing the applicable grounds for TPR and the conditions a parent must meet to ensure his or her child’s return must be incorporated in the last order under Wis. Stat. § 48.356(2). That indisputably did not occur here.

 [9]  Notably, the oral warnings required by Wis. Stat. § 48.356(1) were also insufficient here. As previously detailed, there were seven hearings that required oral warnings of the possibility of TPR and the conditions for return. See, supra, footnote 6. Juanita was provided oral warnings at only three of those hearings, most recently at the September 6, 2012 extension hearing. She was not provided oral warnings at the subsequent June 5, 2013 permanency plan hearing.

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