IN RE THE TERMINATION OF PARENTAL RIGHTS TO K. T., A PERSON UNDER THE AGE OF 18: DANE COUNTY DEPARTMENT OF HUMAN SERVICES v. J. R.
No. 2019AP820
No. 2019AP821
COURT OF APPEALS OF WISCONSIN
November 27, 2019
2020 WI App 5
Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.
PUBLISHED OPINION
Complete Title of Case:
No. 2019AP820
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K. T., A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, V. J. R., RESPONDENT-APPELLANT.
No. 2019AP821
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J. T., A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, V. J. R., RESPONDENT-APPELLANT.
Opinion Filed: November 27, 2019
Submitted on Briefs: August 26, 2019
JUDGES: Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.
Appellant ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the briefs of Colleen Marion, assistant state public defender of Madison.
Respondent ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the briefs of Eve M. Dorman, deputy corporation counsel for Dane County.
COURT OF APPEALS DECISION DATED AND FILED November 27, 2019
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal Nos. 2019AP820, 2019AP821
STATE OF WISCONSIN IN COURT OF APPEALS
Cir. Ct. Nos. 2018TP91, 2018TP92
No. 2019AP820
IN RE THE TERMINATION OF PARENTAL RIGHTS TO K. T., A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, V. J. R., RESPONDENT-APPELLANT.
No. 2019AP821
IN RE THE TERMINATION OF PARENTAL RIGHTS TO J. T., A PERSON UNDER THE AGE OF 18:
DANE COUNTY DEPARTMENT OF HUMAN SERVICES, PETITIONER-RESPONDENT, V. J. R., RESPONDENT-APPELLANT.
APPEALS from orders of the circuit court for Dane County: EVERETT MITCHELL, Judge. Affirmed and cause remanded for further proceedings.
Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.
ground set forth in
¶2 At the time the orders placing J.R.‘s children outside the home were first entered in two CHIPS cases,
¶3 J.R. contends that the County is required to prove the elements of the prior version of
BACKGROUND
¶4 The following facts are not in dispute.
¶5 In May 2017, the circuit court entered CHIPS case orders placing J.R.‘s children, K.T. and J.T., outside the home. Written notice of potential grounds for termination of J.R.‘s parental rights was provided to J.R. with those CHIPS case orders as required by
¶6 On May 1, 2018, the County filed a request with the circuit court to issue orders in both CHIPS cases “to advise [J.R.] of the grounds for termination of parental rights as affected by 2017 Wis[.] Act 256.” 2017 Wis. Act 256, § 1 amended, effective April 6, 2018, the prior version of
parental rights under the amended version of
¶7 On November 14, 2018, the County filed petitions to terminate J.R.‘s parental rights to K.T. and J.T. In each petition the County alleged continuing CHIPS as the ground for termination pursuant to the amended version of
¶8 In early 2019, J.R. filed motions in each TPR proceeding which, if granted by the circuit court, would have required the County to: (1) amend its petitions to allege only the continuing CHIPS ground as stated in the prior version of
¶9 We will mention other material facts in the following discussion.
DISCUSSION
¶10 Before considering J.R.‘s arguments, we note three preliminary matters which give context to this dispute.
I. Preliminary Matters.
¶11 First, we observe that J.R. does not request dismissal of the TPR petitions with prejudice. Rather, J.R. contends that the County must proceed under only the prior version of
¶12 Second, we describe the recent statutory changes to the continuing CHIPS ground for the termination of parental rights. The prior and amended versions of
¶13 The difference between the prior version of
conditions [established for the safe return of the child to the parent‘s home] within the 9-month period following the fact-finding hearing.” We will refer to this as the “9-month failure to meet requirement.”
¶14 Effective April 6, 2018, 2017 Wis. Act 256, § 1 eliminated the 9-month failure to meet requirement and replaced it with the following language which now constitutes the fourth element of the continuing CHIPS ground:
[I]f the child has been placed outside the home for less than 15 of the most recent 22 months, [the petitioner must show] that there is a substantial likelihood that the parent will not meet [the] conditions [established for the safe return of the child to the parent‘s home] as of the date on which the child will have been placed outside the home for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or was residing in a trial reunification home.
¶15 Third, we describe the requirements of
the statutory grounds enunciated in
¶16 As already mentioned, by the time the County filed its TPR petitions in November 2018, the prior version of
¶17 J.R. advances two arguments why the above-mentioned requirements of
II. The Amended Version of WIS. STAT. § 48.415(2)(a) Applies.
¶18 First, J.R. contends that, pursuant to
challenges the circuit court‘s orders on a ground separate from the argument based on
A. WISCONSIN STAT. § 990.04 Does Not Require Application of the Prior Version of the Statute.
¶19 J.R. contends that, pursuant to
¶20
The repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof, whether or not in course of prosecution or action at the time of such repeal; but all such offenses, penalties, forfeitures and rights of action created by or founded on such statute, liability wherefore shall have been incurred before the time of such repeal thereof, shall be preserved and remain in force notwithstanding such repeal, unless specially and expressly remitted, abrogated or done away with by the repealing statute.
(Emphasis added.) This issue concerns questions of statutory interpretation, and we review those questions de novo. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ¶14, 319 Wis. 2d 439, 768 N.W.2d 700.7
¶21 J.R.‘s reliance on
¶22 First, J.R. contends in a one-sentence argument that
applied in his TPR proceedings because the CHIPS cases “generated consequences” prior to the amendment of
¶23 Second, J.R. asserts in another one-sentence argument that the prior version of
¶24 Third, J.R. points to State v. S.M.T., Nos. 2018AP2113, 2018AP2114 and 2018AP2115, unpublished slip ops. (WI App Jan. 29, 2019). J.R. argues that S.M.T. provides persuasive authority that the prior version of
version in effect when the CHIPS dispositional orders concerning his children were first entered. S.M.T. does not assist J.R.
¶25 In S.M.T., the TPR petition was filed before the effective date of the amended version of
¶26 In addition, the County argues that, because
limitation.” But, J.R. does not point this court to the “plain language” he believes refutes the County‘s argument, or explain this “plain language” point, and we conclude that J.R. has conceded the County‘s argument by not developing a response. See Pettit, 171 Wis. 2d at 646-47 (insufficiently developed argument need not be addressed); Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (a proposition asserted by a respondent on appeal and not disputed by the appellant‘s reply may be taken as admitted).
¶27 In sum, J.R. fails to demonstrate that the provisions of
B. Application of the Amended Version of WIS. STAT. § 48.415(2)(a) is Not Retroactive.
¶28 J.R. contends that the act of the County in petitioning for termination of his parental rights based on the amended version of
¶29 J.R.‘s due process challenge involves questions of statutory interpretation and the application of a statute to undisputed facts. These are question of law that we review independently of the circuit court. Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶14. J.R. has the burden to prove that the
amended version of the statute, as applied to him, is unconstitutional beyond a reasonable doubt. Society Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385; State v. Smith, 2010 WI 16, ¶18, 323 Wis. 2d 377, 780 N.W.2d 90.
¶30 As stated, the sole predicate to J.R.‘s constitutional argument is that, in the current posture of these cases, the amended version of
1. Step 1: No Expression of Legislative Intent on Retroactivity.
¶31 In the first step, we look to whether the legislature has expressly noted its intent that the statute be applied retroactively. See id., ¶¶16-17; see also Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 2007 WI 88, ¶36, 302 Wis. 2d 299, 735 N.W.2d 1. If the legislature has expressed such intent, we need not reach the next step in this analysis. Lands’ End, Inc. v. City of Dodgeville, 2016 WI 64, ¶42 (Abrahamson, J., lead), ¶140 (Zeigler, J., concurring), 370 Wis. 2d 500, 881 N.W.2d 702. The parties agree, and we concur, that the legislature did not express its intent that the amended version of
2. Step 2: No Retroactive Effect in These TPR Proceedings.
¶32 The second step in the analysis requires us to determine whether the amended version of
a. Interrelatedness.
¶33 J.R. argues that there is a retroactive effect because of the “interrelatedness” of these TPR proceedings and the CHIPS cases concerning his children. More specifically, J.R. contends that these TPR proceedings are “ancillary” to the CHIPS cases because, without the CHIPS cases, there would be no basis for the continuing CHIPS TPR ground asserted against him in these TPR proceedings. According to J.R., the ancillary nature of these actions to the CHIPS cases requires that the prior version of
¶34 In L.M., an Adjudication and Disposition order regarding L.M. (the child) was entered in a “deprived child action.”8 Id. at 1094, 1104. After the entry of that order, the Oklahoma legislature amended some statutory grounds for the termination of parental rights. Id. at 1096. Subsequent to those amendments, the
State of Oklahoma filed an “Application to Terminate” the parental rights of L.M.‘s mother pursuant to one of those amended grounds. Id. at 1096, 1100. Consistent with Oklahoma procedural rules, the application to terminate the mother‘s parental rights was filed in the ongoing deprived child action. Id. at 1104-05. The mother‘s rights were terminated but, at trial, the jury was instructed on the previous version of the termination of parental rights grounds. Id. at 1098-1100. On appeal, an issue was whether the amended version, rather than the previous version, of the termination of parental
¶35 A division of the Court of Civil Appeals of Oklahoma held that the previous version of the TPR grounds statute, which was in effect when the petition that initiated the deprived child action was filed, had to be applied, rather than the amended version of the statute that was in effect when the application to terminate parental rights was filed. Id. at 1104-05. “[C]ontrolling” the court‘s analysis in L.M. was an Oklahoma constitutional provision which states that “repeal of a statute shall not ... affect” those “proceedings begun” under a subsequently repealed or amended statute. Id. at 1101, 1104 (quoting
¶36 J.R.‘s argument and his reliance on L.M. fail because we are not bound by case law from other state courts. See County of Fond du Lac v. Derksen, 2002 WI App 160, ¶8, 256 Wis. 2d 490, 647 N.W.2d 922. In addition, his argument and reliance on L.M. also fail for at least the following two reasons.
¶37 First, J.R. does not explain why L.M. would be the correct result under Wisconsin law, as opposed to Oklahoma law. J.R. does not point to a constitutional or statutory provision in Wisconsin that is similar to the controlling Oklahoma constitutional provision. J.R. asks us to accept, without explanation, that the mere existence of the CHIPS proceedings concerning his children means that the prior version of the continuing CHIPS ground must apply in these TPR proceedings.
¶38 Second, there are material differences between Wisconsin and Oklahoma law. The holding of the Oklahoma court in L.M. was based on the fact that the application to terminate was part of the deprived child action and, accordingly, the applicable Oklahoma constitutional provision controlled the result. However, in Wisconsin, unlike in Oklahoma, CHIPS cases and TPR proceedings are separate, distinct actions. In Wisconsin, a TPR proceeding is a two-step process that begins when the petitioner files a petition alleging at least one of ten grounds for termination under
proceedings ... are applicable in [TPR] proceedings only insofar as they are expressly made so by [§] 48.415(2).“).9
¶40 Finally, and separately from his reliance on Oklahoma law, J.R. raises for the first time in his reply brief an argument on “interrelatedness” based on initial applicability dates included in two previous amendments to
because it is raised for the first time in J.R.‘s reply brief, and the County has not had an opportunity to address the argument. See Richman v. Security Savings & Loan Ass‘n, 57 Wis. 2d 358, 361, 204 N.W.2d 511 (1973) (we need not address issues or arguments raised for the first time in a reply brief). In addition, we reject this argument because the applicability provisions regarding previous statutory amendments have no relevance here in light of the fact that the legislature did not employ those initial applicability provisions in the amendment of
¶41 In sum, J.R. fails to show that employing the amended version of
b. Vested Right.
¶42 J.R. next argues that he has a “vested right” to parent his children, that right is disturbed by application of the amended version of
¶43 Before addressing the merits of J.R.‘s argument, we note that J.R. did not argue in the circuit court that he has any vested right. J.R.‘s only mention of a “vested right” in his motion, briefing, or argument in the circuit court, was a quick mention that “procedural statutes” have retroactive effect if those procedural statutes disturb “vested rights.” J.R. then informed the circuit court that
argument in the circuit court that he had a vested right that was disturbed by application of the amended version of the statute, we conclude that J.R. has forfeited the right to make that argument on appeal. See Shadley v. Lloyds of London, 2009 WI App 165, ¶¶25-27, 322 Wis. 2d 189, 776 N.W.2d 838 (“The party alleging error has the burden of establishing, by reference to the record, that the error was raised before the [circuit] court” because the circuit court has had no opportunity to rule on the issue. (quoted source omitted)). However, even if
¶44 As noted, J.R.‘s constitutional argument requires a determination that a statute, in fact, operates retroactively. A statute does not operate retroactively “simply because it is applied ‘in a case arising from conduct antedating the statute‘s enactment.‘” Lands’ End, 370 Wis. 2d 500, ¶¶47-48 (Abrahamson, J., lead) (quoted sources omitted); see id., ¶¶131 and 136 n.9 (Zeigler, J., concurring). Rather, germane to J.R.‘s instant argument, legislation operates retroactively when the statute takes away or disturbs a vested right. See id., ¶49 (Abrahamson, J., lead), ¶¶135-36 (Zeigler, J., concurring).
¶45 “[A]n existing right of action which has accrued under the rules of the common law or in accordance with its principles is a vested property right.” Id., ¶70 (Abrahamson, J., lead) (quoting Matthies, 244 Wis. 2d 720, ¶22 (quoting Hunter v. School Dist. Gale-Ettrick-Trempealeau, 97 Wis. 2d 435, 445, 293 N.W.2d 515 (1980))); see id., ¶137 (Ziegler, J., concurring). Vesting of a right does not occur until the right is no longer contingent. Id., ¶73 (Abrahamson, J., lead); see id., ¶137 (Ziegler, J., concurring). “But ‘[t]he mere expectation of a future benefit or contingent interest does not create a vested right.‘” Id., ¶49 (Abrahamson, J., lead) (quoting 2 Norman J. Singer & J.D. Shambie Singer,
Statutes and Statutory Construction § 41:6, at 456-57 (7th ed. 2009)); see id., ¶137 (Zeigler, J., concurring).
¶46 J.R.‘s argument starts with the premise that he has a “fundamental liberty interest” in “parenting [his biological] children.” J.R. then contends that this purported liberty interest is a “vested right,” as that term is used in the Wisconsin retroactivity case law. However, J.R. cites only a Tennessee Supreme Court opinion, In re D.A.H., 142 S.W.3d 267 (Tenn. 2004), to support his contention that his right to parent his children is a “vested right,” and, as we proceed to explain, that case does not help J.R.
¶47 In D.A.H., the Tennessee TPR statute was amended in a material way after a TPR action had been initiated. Id. at 272-73. The determination in D.A.H. was controlled by a provision in the Tennessee Constitution which states that “no retrospective law ... shall be made.” Id. at 273 (quoting
¶48 For several reasons we now discuss, we conclude that D.A.H. does not govern or inform our determination about retroactive effect. First, J.R. does not point to a Wisconsin constitutional provision similar to the Tennessee constitutional language which controlled the result in D.A.H. Second, J.R. does not attempt to show that the definition of “vested right” in the context used by the Tennessee Supreme Court is the same as the definition of “vested right” as used in the retroactive effect case law from the Wisconsin Supreme Court that binds our
analysis. Third, we question whether the “vested right” of a parent recognized by the Tennessee Supreme Court is the same as the “fundamental liberty interest” of a parent recognized by the Wisconsin Supreme Court. See, e.g., id. at 274 (in Tennessee, a “biological parent” has the right to the “care and custody of their children“); Tammy W-G., 333 Wis. 2d 273, ¶52 (“Parents who have developed a relationship with their children have a fundamental liberty interest in the ‘care, custody, and control of their children.‘” (emphasis added) (citing Troxel v. Granville, 530 U.S. 57, 57 (2000))); see also Monroe Cty. DHS v. Kelli B., 2004 WI 48, ¶23, 271 Wis. 2d 51, 678 N.W.2d 831 (a parent with a “substantial relationship” with his or her child has a “fundamental liberty interest” in parenting).
¶49 Fourth, even if we assume that J.R. has a vested right to parent his children, J.R. does not establish that he has been deprived of that right by the application of the amended version of
¶50 Wisconsin cases concerning deprivation of a vested right all contain circumstances in which a party had a “vested property right” or “accrued right” which was lost upon, and because of, the passage or amendment of a statute. See, e.g., Matthies, 244 Wis. 2d 734, 737-38 (plaintiff had “an accrued or vested right to recover” and a “vested property right” which was impaired by a change in the joint and several liability statute); Neiman v. American Nat‘l Prop. and Cas. Co., 2000 WI 83, ¶¶8, 14, 236 Wis. 2d 411, 613 N.W.2d 160 (loss of a “vested right” “that accrued before passage of” a change in a damages cap); Martin v. Richards, 192 Wis. 2d 156, 197, 199, 531 N.W.2d 70 (1995) (loss of a “vested right to a cause of action” based on a statutory change to a damages cap); Hunter, 97 Wis.
2d 435, 445 (loss of a “vested property right” upon passage of an amendment to a statute of limitations). In contrast, J.R. does not make that connection between the passage of the amendment to
C. J.R.‘s Due Process Challenge Fails.
¶51 We now consider J.R.‘s as-applied due process constitutional challenge to the application of the amended version of
¶52 J.R.‘s due process challenge rests solely on J.R.‘s contention that the amended version of
¶53 J.R.‘s due process argument also fails because, for reasons we now discuss, J.R. has not demonstrated that application of the prior version of
See Society Ins., 326 Wis. 2d 444, ¶27 n.9 (“Because Society makes an as-applied
¶54 First, in briefing in this court and as discussed above, J.R. refers to purported effects of applying the amended version of the statute rather than the prior version. However, those references do not cite to the record. As well, those arguments from J.R. refer only to hypothetical facts regarding “parents.” J.R. does not tie those generalized hypotheticals to evidence of his own circumstances and, as a result, those contentions cannot be a basis to support his constitutional argument.
¶55 Second, at one point in his briefing in this court, J.R. contends that, as of May 2018, he “was making significant progress toward meeting the conditions of return” of his children to the home under the prior version of the statute. That contention is accompanied by a non-specific citation to three pages of a transcript of a hearing which was held in the circuit court. But, nothing in those pages of that transcript supports J.R.‘s assertion that he was making progress toward meeting any return conditions. J.R. further alleges in this court that he was
“close to meeting the conditions of return.” However, that allegation is not accompanied by any citation to the record.
¶56 In sum, J.R. has not demonstrated that applying the amended version of the statute, as opposed to the prior version, will make a difference to the result in these TPR proceedings and has, thus, failed to show that applying the amended version of the statute will actually violate his due process rights.
¶57 For those reasons, we conclude that J.R. has failed to establish that the amended version of
CONCLUSION
¶58 For the foregoing reasons, the orders of the circuit court are affirmed.
By the Court.—Orders affirmed and cause remanded for further proceedings.
Notes
(1) Whenever the court orders a child to be placed outside his or her home... the court shall orally inform the parent or parents who appear in court... of any grounds for termination of parental rights under
s. 48.415 which may be applicable and of the conditions necessary for the child... to be returned to the home....(2) In addition to the notice required under sub. (1), any written order which places a child... outside the home... shall notify the parent or parents... of the information specified under sub. (1).