Dane County DHS v. J. R., 938 N.W.2d 614

Background

In May 2017 the circuit court entered CHIPS orders placing J.R.’s children outside the home and the written CHIPS orders (and subsequent continuance orders) notified J.R. of possible TPR grounds using the pre-2018 language of Wis. Stat. § 48.415(2)(a).
2017 Wis. Act 256 amended § 48.415(2)(a) effective April 6, 2018; the amendment changed the fourth element of the “continuing CHIPS” TPR ground by eliminating a 9‑month failure-to-meet requirement and substituting a prospective 15-of-22‑months likelihood test.
On May 3, 2018 the circuit court entered updated CHIPS orders notifying J.R. of the amended statutory language; the County later filed TPR petitions on November 14, 2018 alleging continuing CHIPS under the amended statute.
J.R. moved to require the County to proceed only under the prior (pre‑amendment) version of § 48.415(2)(a), arguing (1) Wis. Stat. § 990.04 preserved the earlier statutory “right” and (2) applying the amended statute is an unconstitutional retroactive, as‑applied deprivation of his due process/parental rights.
The circuit court denied J.R.’s motions; the Court of Appeals affirmed, holding the County must proceed under the amended § 48.415(2)(a) and that the amendment is not retroactive or unconstitutional as applied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wis. Stat. § 990.04 requires application of the pre‑2018 version of § 48.415(2)(a)	§ 990.04 preserves accrued "rights of action" created under the prior statute, so the County must prosecute TPR under the prior version	§ 990.04 does not help because (a) no right of action accrued under the prior text before amendment, (b) the TPR petitions were filed after the amendment, and (c) § 48.42 requires petitions to plead the grounds as set forth in § 48.415 (the current statute)	Court of Appeals: § 990.04 does not compel use of the prior version; J.R. failed to show a preserved accrued right under § 990.04
Whether applying the amended § 48.415(2)(a) is a retroactive change that violates due process (interrelatedness of CHIPS & TPR)	CHIPS proceedings that began under the prior statute are "interrelated"/ancillary to TPR; because CHIPS orders predate the amendment, the prior statute should govern the TPR	TPR is a separate proceeding that begins when a petition is filed; the TPR petitions were filed after the amendment, and the legislature expressed no retroactive intent	Court: No retroactive effect; CHIPS and TPR are distinct proceedings, so amended statute applies to petitions filed after its effective date
Whether the amended statute operates retroactively by disturbing a parent’s vested right to parent (as‑applied due process)	Parent has a vested/fundamental right to parent; removing the earlier statutory element disturbs that vested right and is unconstitutional as applied	J.R. forfeited a vested‑rights argument below; even on the merits, he failed to show a vested property/accrued right was taken or that application of the amended statute actually alters the outcome in his case	Court: Forfeited or unproven; J.R. did not show amendment disturbed an accrued/vested right or that result would differ under the old test, so due process challenge fails

Key Cases Cited

Tammy W‑G. v. Jacob T., 333 Wis. 2d 273 (2011) (describing the two‑phase structure of TPR proceedings and that grounds must be those in § 48.415)
St. Croix Cty. DHHS v. Michael D., 368 Wis. 2d 170 (2016) (emphasizing that TPR cases are distinct from CHIPS proceedings)
Matthies v. Positive Safety Mfg. Co., 244 Wis. 2d 720 (2001) (two‑step retroactivity analysis and vested‑rights discussion)
Lands’ End, Inc. v. City of Dodgeville, 370 Wis. 2d 500 (2016) (statutory retroactivity principles; examine legislative intent first)
Society Ins. v. LIRC, 326 Wis. 2d 444 (2010) (burden for as‑applied constitutional challenges; challenger must prove violation)
Monroe Cty. DHS v. Kelli B., 271 Wis. 2d 51 (2004) (parental liberty interest in care, custody, and control of children)