927 N.W.2d 560
Wis. Ct. App.2019Background
- Allie (born 2014) was removed from parents T.F. and B.P. under CHIPS and placed in foster care in October 2014; she never returned to either parent.
- In October 2017 the Brown County Department filed petitions to involuntarily terminate parental rights alleging abandonment under Wis. Stat. § 48.415(1)(a)3 (six‑month "left with" ground).
- The circuit court granted partial summary judgment finding both parents abandoned Allie and rejected their good‑cause defenses; appeals followed.
- T.F. argued the Department had to plead the CHIPS‑specific abandonment ground (§ 48.415(1)(a)2) or, alternatively, that subd. 3 could not apply because Allie was involuntarily removed; she also raised (for the first time on appeal) equal protection concerns.
- The court of appeals held the Department may plead any factually and legally applicable abandonment subdivision, that an out‑of‑home CHIPS placement can satisfy subd. 3’s "has been left" element, affirmed judgment as to B.P., reversed as to T.F. and remanded for fact‑finding on T.F.'s good‑cause defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 48.415(1)(a) requires the Department to plead only subd. 2 when a CHIPS out‑of‑home order exists | T.F.: Dept. must proceed under subd. 2 (CHIPS‑specific) and may not use subd. 3 | Dept.: § 48.415(1)(a) permits pleading any applicable abandonment ground | Held: statute's plain language ("any") permits pleading any factually/legal applicable subdivision; Dept. not limited to subd. 2 |
| Whether subd. 3’s element that the child was "left by the parent" can be met when removal was involuntary under CHIPS | T.F.: "left" requires voluntary placement by parent and thus cannot be satisfied here | Dept.: prior case law shows "left" can include situations where the parent knows/ could discover whereabouts and fails to contact child | Held: Rhonda R.D. governs; involuntary CHIPS placement can satisfy the "left" element because subd. 3 focuses on post‑removal contact |
| Whether T.F.'s equal protection challenge to application of subd. 3 is reviewable | T.F.: application of subd. 3 leads to arbitrary/unequal treatment and violates equal protection | Dept.: T.F. failed to notify Attorney General as required for constitutional challenges; issue not raised below | Held: Court declines to consider equal protection claim for procedural reasons (no AG notice, raised first on appeal) |
| Whether summary judgment was proper on parents’ good‑cause defenses to abandonment | Parents: genuine disputes of material fact exist (transportation, communications, mental health/grief) | Dept.: parents failed to create material factual disputes (transport offer, lack of specificity, need for expert causation) | Held: For T.F., genuine disputes exist (transportation, whether communication was "meaningless") — summary judgment reversed and remanded for fact‑finding. For B.P., factual assertions insufficient and lacking expert causation — summary judgment affirmed. |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (statutory interpretation principles)
- Heather B. v. Jennifer B., 331 Wis. 2d 666 (distinguishing § 48.415 subds.; notice and three‑month rule under subd. 2)
- Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680 ("left by the parent" can include involuntary separations; focus on post‑removal contact)
- Steven V. v. Kelley H., 271 Wis. 2d 1 (summary judgment in TPR cases; heightened burden and fact‑intensive nature)
- State v. Sample, 215 Wis. 2d 487 (use of dictionary/plain meaning in interpretation)
- St. Croix Cty. DHHS v. Michael D., 368 Wis. 2d 170 (cannot read language into statute)