2014 Case Law &
Statutory Update
1
Barron Co. v. Christopher B. and Maria A.
13AP2735
04/01/2014
• Aliyana born in December of 2008 and Removed in July of 2011
• TPR filed November 15, 2012
• Continuing CHIPS & Failure to Assume Parental Responsibility
• Jury Trial held
• Jury did NOT find grounds for Continuing CHIPS
• Found the Agency did NOT make reasonable efforts.
• Did find grounds for Failure to Assume Parental Responsibility
• At disposition, Court terminated parental rights
2
Challenge
• Failure to Assume ground, as applied to Maria, is unconstitutional.
• Question of law: Independent appellate review.
• Maria has a fundamental liberty interest in parenting Aliyana.
• A statute infringing on a fundamental liberty interest is subject to
strict scrutiny. Kenosha Co. DHS v. Jodie W., 2006 WI 93.
• The State’s compelling interest in termination grounds is to protect
children from unfit parents. Id.
• Must determine: Is statute, as applied to Maria, narrowly tailored to
meet the State’s compelling interest of protecting Aliyana from an
unfit parent? Id.
3
Maria contends
• FTA ground unconstitutional as applied because ground was based
largely on Aliyana’s out of home placement.
• In closing statements, Department argued:
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Maria not there when Aliyana gets up each morning.
Maria not there when Aliyana goes to bed each night.
Maria missed morning and evening meals.
Parenting is a 24 hour endeavor.
• Analogizes to Jodie W.,
• Can’t remove Aliyana, fail to make reasonable efforts to help reunify and then
argue the Maria failed to assume parental responsibility because Aliyana was
not at home.
4
Maria’s argument fails because
• Maria assumes jury based decision on the fact that Aliyana was in
foster care which prevented Maria from caring for Aliyana 24 hours
per day.
• However, ample evidence was presented surrounding issues other
than the Aliyana’s foster care placement.
• Evidence showed that:
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Maria neglected Aliyana
Aliyana did not recognize Maria
Maria did not keep Aliyana appropriately supervised or safe.
Maria harassed Aliyana.
5
• Is not analogous to Jodie W.
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Child in Jodie W. was found CHIPS and removed when mom was in custody.
One COR was that mother obtain suitable housing.
Department filed a TPR based upon mother failing to satisfy that condition (housing).
In Jodie W., the COR were not narrowly tailored to protect child from unfit parent bc
mom found unfit solely because she was incarcerated without regard to her actual
parenting abilities or the condition of her child.
• In Jodie W., the Continuing CHIPS ground, as applied to Jodie, was not
narrowly tailored to protect her child from an unfit parent (Jodie) and, as a
result, Jodie’s substantive due process rights were violated.
• In this case, the record does not support the assertion that Maria was
found to have failed to assume parental responsibility based solely on the
fact that Aliyanna was placed in foster care.
• Therefore, FTA, as applied to the Maria was narrowly tailored to meet the
Department’s compelling interest of protecting Aliyanna from an unfit
parent.
6
• No substantive due process violation.
Dane Co. DHS v. Latasha G.
2014AP45-46
04/03/2014
• Two children: Ivyonna (February 2002) & Cecelia (November 2006)
• In February of 2011, criminal complaints filed against mother,
Latasha, for child abuse to both children.
• Children placed out of home in February of 2011.
• Bail Condition: no contact directly or indirectly with these children.
• CHIPS Dispositional Order entered in August of 2011.
• Condition: Have regular and successful visits.
• Contact may occur 1) after the no contact order is dismissed; 2) the children
are identified as mentally stable by their therapist; 3) Latasha begins
individual counseling and parenting classes; and 4) Latasha demonstrates
positive changes in her behavior towards her children.
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• Mother requested modification of No Contact order in June of 2011,
January of 2012 and June of 2012. All requests were denied.
• March 2012, Latasha is convicted of intentional child abuse of children.
• 4 year prison term, 6 years extended supervision
• No contact with children unless approved by parole officer an DHS.
• DHS did not approve of any contact after February of 2011
• TPR petitions filed Nov. of 2012: Cont. Denial of Periods of Placement
• Elements of Continued Denial of Periods of Placement
• Parent has been denied periods of placement by court order in an action affecting
the family; or
• Parent has been denied visitation under an order under CH. 48 or 938 containing the
notice required by Sec. 48.356(2) or Sec. 938.356(2)
AND
• That at least one year has elapsed since the order denying periods of physical
placement or visitation was issued
AND
• The court has not subsequently modified its order so as to permit periods of physical
placement or visitation.
8
• Motion for Summary Judgment filed by County.
• Latasha conceded that no facts were in dispute.
• Latasha moved to dismiss, alleging Continuing Denial of Periods of
Placement ground, as applied to her, was unconstitutional.
• Her right to visitation with the children was restricted by conditions beyond
her control.
• Circuit Court denied motion, found grounds and terminated Latasha’s
parental rights to both children.
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Discussion
• Whether an individual’s substantive due process rights have been
violated by government action is a question of law, subject to
independent appellate review.
• Must prove deprived of liberty or property interest that is
constitutionally protected. Thorp. V. Town of Lebanon, 2000 WI 60.
• A parent has a fundamental right to the care and custody of his/her
children.
• State may not terminate his/her right without an individualized
determination that a parent is unfit. Jodie W., 2006 WI 93.
10
Latasha alleges:
• Substantive due process rights were violated because she was
determined to be unfit based on a condition that was impossible for
her to satisfy.
• Condition: Have regular and successful visits.
• Impossible because of criminal court no contact order.
11
• In Jodie W., mother was in jail/prison for convictions unrelated to her
child. Rights were terminated because she could not meet an
impossible condition of return (housing). Termination was not based
upon parenting or condition of child.
• There was no individualized finding of unfitness.
• Court concluded: “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.
• Incarceration is not irrelevant.
• Can consider parent’s incarceration along with other factors relevant
to the parent and child, such as nature of crime committed and the
type of sentence.
12
• Assume without deciding that Jodie W. rational applies to Continuing
Denial of Periods of Placement ground.
• Assume substantive due process violation IF the sole reason a parent has
been denied physical placement under a CHIPS Order is because it was
impossible for the parent to meet that condition under the order SOLELY
because of incarceration.
• Then, Latasha needed to show that there is a reasonable inference from
the facts in the record that she was unable to have physical placement or
visitation solely because of her incarceration.
• She has not done so.
• The Circuit Court imposed restrictions on contact. Record does not support
a reasonable inference that those conditions were imposed merely by
virtue of Latasha’s incarceration.
• Many parents who are incarcerated can visit with their children.
• Reasonable inference is that the restrictions were imposed because of her
abuse to the kids, which led to charges and a conviction.
13
• Latasha says court erred in finding her unfit because the court did so
based on facts irrelevant to the ground alleged (denial of periods of
placement).
• Clear from court’s determination that the court found the termination
was appropriate because she had been denied periods of placement
since February of 2011.
• No substantive due process violation.
14
Portage Co. DHS v. Julie G.
2014AP1057
July 31, 2014
• Brooklyn born in November of 2008 and removed in January of 2010.
• Dispositional Order entered on April 8, 2010.
• Conditions of Return, Services and TPR warnings
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Brooklyn returned home on August 23, 2010.
Brooklyn re-removed on August 31, 2011.
Julie arrested in September of 2011 for threatening a judge.
Sentence: 6 years in custody – Taycheedah.
April 5, 2013 an Order for Revision and Order for Change of Placement was
signed.
• Julie appeared in court, was given TPR warnings and advised of Conditions of Return.
• Written TPR warnings were attached.
• Conditions of Return attached.
15
Argument #1
• The Department failed to prove that she received the TPR warnings,
because her signature is not on the form.
• Court of Appeals response:
• No authority supports Julie’s position.
• Steven H. case does not require proof that a parent received the written
notice.
16
Argument #2
• Substantive due process rights were violated because the Continuing
CHIPS ground was based upon Conditions of Return that were
impossible for Julie to meet.
• Conditions were not tailored to Julie’s status as being incarcerated
and were impossible for her to meet because of her incarceration.
• Court of Appeals response:
• Julie overstates the ruling in Jodie W. and this case is distinguishable
• Continuing CHIPS ground was based on Julie’s actual parenting activities and
not solely on her incarceration.
• Department was involved with Julie prior to her incarceration.
• Some Conditions of Return were impossible because of incarceration, but a
number of Conditions went unmet before Julie was incarcerated.
• Julie’s inability to meet the conditions in earlier orders issued before her
incarceration, not after, that provided the basis to find grounds existed.
17
Argument #3
• Julie is entitled to a new trial in the interest of justice based upon the
Department’s closing argument.
• Certain statements confused the jury so that the real controversy was
not tried.
• Julie’s counsel did not object at closing statements and did not ask for
a cautionary or curative instruction.
• This prevented the court from having the opportunity to correct any
alleged error – and conceded at trial that the statements did not cross
the line to such a degree that the real controversy was not fully tried.
• She forfeited this argument by failing to object at trial.
• Decline to grant a new trial based on the interest of justice.
18
Portage Co. DHS v. Tanya G.
2014AP86
09/11/2014
• Autumn was removed from Tanya in 2009.
• A dispositional order was entered with COR.
• 2013 a TPR was filed
• Continuing CHIPS
• Failure to Assume Parental Responsibility
• Jury trial conducted
• Although 2 grounds alleged, 1 Special Verdict was given with 5
questions.
• 1-4 Continuing CHIPS elements/questions
• 5 – Failure to Assume element/question
19
• Court instructed on Questions 1-3
• Order, Out of Home 6 months, TPR attached.
• County make reasonable efforts to provide court ordered services.
• Has parent failed to meet the conditions established.
• Question #4:
• Is there a substantial likelihood that parent will not meet these conditions
within the nine-month period following the conclusion of this hearing?
• In answering #4, you may consider all evidence . . .of events and conduct
occurring since the filing of the petition on July 23, 2013. Your answer must
reflect your finding as of today’s date.
• Instructed on Question #5 (Failure to Assume ground)
• Has parent failed to assume parental responsibility
• Court read Wis JI 180
• In answering 1-4 in the special verdict, you must consider the facts and
circumstances as they existed on July 23, 2013, which was the date on which
the petition was filed. Your answer must reflect your finding as of that date.
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• Following closing arguments:
• Agreement of 10 or more jurors is sufficient to become the verdict of the jury.
• If you can do so consistently with your duty as a juror, at least the same 10
jurors should agree in all the answers. I ask you to be unanimous if you can.
• Following deliberations, jury answered yes to all 5 questions.
• #1 – #4 Continuing CHIPS ground
• #5 Failure to Assume ground
• Tanya’s rights were terminated at disposition.
• Tanya appeals
21
4 Arguments
1) Jury instructions regarding 5/6 verdict was a misstatement of the
law and thus confused and mislead the jury
2) WI JI 324A and WI JI 180, which were both given to the jury,
confused and misled the jury as to the timing of the evidence the
jury was to consider in reaching its verdict
3) Counsel provided ineffective assistance for failing to object to the
challenged jury instructions.
4) Requests COA exercise it discretionary power of reversal under Wis.
Stats. Sec. 752.35, because the real controversy was not fully tried,
based on the jury receiving the challenged jury instructions.
22
Purpose of jury instructions
• To fully and fairly inform the jury of a rule or principle of law applicable to a
particular case. Nommensen v. American Cont’l Ins. Co., 2001 WI 112.
• If it is determined that the overall meaning communicated by the
instruction as a whole was a correct statement of the law, and the
instruction comported with the facts of the case at hand, no grounds for
reversal exist. Id.
• An erroneous instruction warrants reversal and a new trial if the error was
prejudicial. Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72.
• An error relating to the giving of an instruction is not prejudicial if it
appears that the result would not be different had the error not occurred.
Id.
23
Argument #1
• Jury instructions regarding 5/6 verdict was a misstatement of the law
and thus confused and mislead the jury.
• The law only requires the same ten jurors agree on the same claim.
• It does not require the same ten agree when the civil verdict present two or
more claims. In the Interest of C.E.W., 124 Wis.2d 47(1985).
• County agrees with this point.
• COA agrees that this instruction, as given to the jury, misstates the law.
• However, Tanya did not prove that she was prejudiced by this error.
• The jury was unanimous on the verdict to both grounds.
• If any of the jurors dissented to one or both questions, she might have been
entitled to a new trial.
24
Argument #2
• WI JI 324A and WI JI 180, which were both given to the jury, confused
and misled the jury as to the timing of the evidence the jury was to
consider in reaching its verdict.
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County agrees 180 should not have been given to the jury.
Court of Appeals agrees 180 should not have been given to the jury.
Tanya fails to show any prejudice as a result of the error.
She fails to demonstrate that the jury’s result would have been different had
the court not provided 180.
Instruction was contained in 324A that jury was to consider post petition
conduct.
Proper instruction was given in 324A and it is presumed that the jury follows
the instructions given.
Tanya does not show that jury was mislead or confused.
No prejudice shown, no grounds for reversal.
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Argument #3
• Counsel provided ineffective assistance for failing to object to the
challenged jury instructions.
• Tanya must show deficient performance AND prejudice. Strickland, 466 U.S. 668.
• It is likely that counsel was deficient in failing to object, Tanya showed no
prejudice.
• To show prejudice, must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
• COA already explained how Tanya was not prejudiced.
• No reason to consider this issue.
26
Argument #4
• Requests COA exercise it discretionary power of reversal under Wis.
Stats. Sec. 752.35, because the real controversy was not fully tried,
based on the jury receiving the challenged jury instructions.
• COA may order a new trial if we conclude that the real controversy
has not been fully tried.
• This power is exercised sparingly and only in exceptional cases. State v.
Prineas, 2009 WI App 28.
• This request relies entirely on the jury instruction arguments which
the COA has rejected.
• Deny new trial.
27
Portage Co. DHHS v. Shannon M.
2014AP1259&1260
October 2, 2014
• TPR filed under Abandonment, Continuing CHIPS and Denial of PP
• Filed January 17, 2014
• Continuing Denial of Periods of Placement dismissed before trial.
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Order stopping visits was made at a Perm. Plan Hearing (Sept. 2012)
Mother and counsel not present
Contact ordered to stop, no conditions to reinstate created, no TPR
Mother not given copy of the order
Mother learned in a phone call the next day of the order
• Trial on grounds held March 20, 2014
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• Jury found grounds on both allegations
• Mother moved for JNOV
• Judgment notwithstanding the verdict
• The findings of the verdict are accepted as true and the movant asserts that for
reasons other than those decided by the jury, the movant should have judgment.
Wis. Stats. Sec. 805.14(5)(b)
• Court granted Mother’s motion and dismiss TPR
• Circuit Court explained that it believed, originally, that dismissing the Denial of PP
ground, it removed the taint from the bad order.
• After hearing the evidence at trial, the court had no confidence that the
abandonment ground and been properly and legally proven because it was tainted
from the outset by the improper procedures and actions of the Court.
• Court concerned if the jury’s verdict would have been different on the Continuing
CHIPS ground if it heard of the improper order and its effect on the mother. The
entire proceeding was tainted by the bad September 2012 Order.
• Department Appeals
• JNOV – Question of law, subject to de novo review.
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• Department argues that there was enough evidence to sustain the
abandonment ground.
• In JNOV, sufficiency of the evidence is not the issue.
• The focus, instead, is on whether the movant should have judgment for
reasons other than those decided by the jury.
• September 2012 order and circumstances surrounding the improper entry
of the order may have had a negative effect on the mother’s conduct and
may have contributed to her abandonment.
• Department argues that judge usurped the jury’s role as fact finder in the
Cont. CHIPS dismissal
• Mom said she didn’t know she could communicate with kids, Dept. said they told her
that she could.
• Jury must have believed Department witness.
• COA: It is unclear what effect the bad order had on mother’s behavior
following the entry of the order. Unclear of impact on jury if they were
aware of the improper order.
• JNOV appropriate.
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STATUTORY UPDATE
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2013 Act 337 – Waiver of Counsel on TPR (Parent 18 or over)*
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Parent is presumed to waive counsel when:
Parent was ordered to appear in person at any or all subsequent hearings
Parent fails to appear in person, as ordered
Court finds that the parent’s failing to appear in person was egregious and without clear
and justifiable excuse.
• Failure of a parent to appear in person at consecutive hearings as ordered is presumed to
be conduct that is egregious and without clear and justifiable excuse.
• If the Court finds the parent waived counsel by this conduct, the court cannot hold a
dispositional hearing on a contested adoption or involuntary termination of parental
rights matter until at least 2 days has elapsed from date of that finding.
• If a parent brings a motion to reconsider or vacate a default judgment granted on a TPR,
the parent who has waived counsel under (b)(1) or (b)(3) shall be represented by counsel
in that motion, unless in the proceeding to vacate or reconsider the default judgment,
the parent is found to have waived counsel under (b)(1) or (b)(3).
32
2013 Act 334 – Extension of Foster Care to Age 21, with an IEP.
• Foster care can be extended to age 21 if
• Child is a full-time student at a secondary school or its vocational or
technical equivalent
• An individualized education program under s. 115.787 is in effect for the
child.
• The order until 21 is granted when the child is 17 or older and the guardian
or the child agrees to the order.
• An order extending to age 21 would terminate when the first of the
following occurs:
• the child obtains a diploma or equivalency diploma
• the child turns 21.
• Any time after the child turns 18, the child or the guardian at the request of the child
may request, in writing, that the court terminate the order. Upon receive the
request, the court, without a hearing, shall terminate the order.
33
2013 Act 314 – Rehoming bill
• Makes it illegal for a person/entity other than an agency to advertise for
adoption or the placement of children.
• Creates penalties for transferring the physical custody of children in
violation of the ICPC.
• Creates a hearing and other requirement for delegations to non-relatives
lasting more than one year.
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Hearing must be held to determine whether delegation is contested.
Court must hold a fact-finding and dispositional hearing.
Court must determine whether the delegation is in the best interest of the child.
Court must determine whether the nominated agent is fit, willing and able.
A parent may agree to pay child support under a delegation.
• Requires compliance with portions of WICWA for delegations over one
year.
• Requests a study committee on adoption disruption and dissolution.
•
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Act 379 – Restoration to Original Birth Certificate after Adoption
• An adult who was adopted may petition the court to restore the names of the
adult’s birth parents on the adult’s birth certificate, if:
• Adult who was adopted
• Petitions the court for a new birth certificate
• The adult petitioner did not have the opportunity under Wis. Stat. Sec. 69.15(a),
at the time of the adoption to request that no new birth certificate be prepared.
• The adult petitioner knows the identity of each birth parent who is named on the
original birth certificate.
• Each birth parent who is alive and who is named does not object to the
restoration of the information on the original birth certificate.
• Restoring the Birth Certificate does not:
• Affect the legal relationship of parent and adoptee that was created by the order
of adoption.
• Restore any legal rights or any legal relationship that terminated upon an order of
adoption.
• Change the adoptee’s legal name.
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Proposed Legislation
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