In re the termination of parental rights to T. L. E.-C., a person under the age of 18: Eau Claire County Department of Human Services, Petitioner-Respondent, v. S. E., Respondent-Appellant-Petitioner.
Case No.: 2019AP894
Supreme Court of Wisconsin
June 10, 2021
2021 WI 56
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 392 Wis. 2d 726, 946 N.W.2d 155 PDC No: 2020 WI App 39 - Published; Oral Argument: February 25, 2021; Source of Appeal: Circuit Court, Eau Claire County, Judge Emily Long
ATTORNEYS: For the respondent-appellant-petitioner, there were briefs filed by Thomas B. Aquino, assistant state public defender. There was an oral argument by Thomas B. Aquino.
For the petitioner-respondent, there was a brief filed by Sharon L.G. McIlquham, assistant corporation counsel. There was an oral argument by Sharon L.G. McIlquham.
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to T.L.E.-C., a person under the age of 18:
Eau Claire County Department of Human Services, Petitioner-Respondent, v. S.E., Respondent-Appellant-Petitioner.
FILED JUN 10, 2021 Sheila T. Reiff Clerk of Supreme Court
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. If a circuit court determines a child is in need of protection or services (CHIPS) due to a parent‘s neglect, refusal, or inability (for reasons other than poverty) to provide necessary care to the extent that the physical health of the child is seriously endangered, the circuit court may order the child removed from the parental home.
¶2 Although “the paramount goal” of Chapter 48 of the Wisconsin Statutes “is to protect children and unborn children,” the Children‘s Code also aims “to preserve the unity of the family, whenever appropriate, by strengthening family life through assisting parents and the expectant mothers of unborn children, whenever appropriate, in fulfilling their responsibilities as parents or expectant mothers.”
¶3 In 2018, the legislature amended
¶4 Sophie raises two issues: (1) whether as a matter of statutory construction, the “15 out of 22 months” timeframe began to run only after Sophie received written notice of the amended version of
¶5 We hold: (1) the “15 out of 22 months” timeframe, as codified in the 2018 amended version of
I. BACKGROUND
¶6 In May 2016, the Department received a report of a three-year-old child, Tyler, wandering unattended on a campground with a full diaper. Tyler‘s mother, Sophie, was on a probation hold at the time for methamphetamine possession. In June 2016, the Department removed Tyler from Sophie‘s care and placed him in a foster home. When the Department conducted a drug test on Tyler, he tested positive for methamphetamine. Tyler‘s foster parents observed that he showed significant signs of neglect. In August 2016, the circuit court found Tyler to be a child in need of protection or services.
¶7 Under that initial CHIPS order, the circuit court provided Sophie with written notice of the potential grounds for termination of Sophie‘s parental rights to Tyler, as required by
¶8 During the two years following Sophie‘s initial CHIPS order, Sophie continued her drug use and was arrested on numerous occasions for drug possession. She also absconded from probation and refused to participate in the court-ordered services offered by the Department that would have aided Sophie in meeting the conditions for reunification with Tyler. According to the Department, Sophie has not seen Tyler in person since October 2016.
¶9 In April 2018, the legislature amended the third sub-part of the continuing CHIPS statute. See 2017 Wis. Act 256, § 1;
¶10 In June 2018, the Department filed a petition to terminate Sophie‘s parental rights to Tyler. The petition cited abandonment as the ground for termination. In September 2018, the
¶11 In April 2019, prior to a trial in the grounds phase of Sophie‘s TPR proceedings,9 the parties disputed whether the 2016 version or the 2018 amended version of
[Sophie] had the current warnings, the warnings that would be for the current law on multiple occasions with significant time to adjust to those warnings, that this has been going on for quite some time with those new updated warnings being given.
Given the purpose of the statute, given the stated, intended, desired outcome — that is permanence of the child — I am going to find that the new law will apply in this case.
The circuit court also concluded that the “15 out of 22 months” timeframe began to run in 2016 when Sophie received the initial CHIPS order and written notice.
¶12 The circuit court adjourned the TPR trial to allow Sophie to appeal the non-final order to the court of appeals. The court of appeals granted Sophie‘s petition for interlocutory appeal and affirmed the circuit court‘s ruling. We granted Sophie‘s petition for review.
II. STANDARD OF REVIEW
¶13 Sophie first contends that, as a matter of statutory construction, the “15 out of 22 months” timeframe began to run only after Sophie received written notice of the amended version of
¶14 Sophie also argues that starting the “15 out of 22 months” timeframe in 2016 when Sophie received the initial CHIPS order and written notice referencing the prior version of
III. DISCUSSION
A. CHIPS Orders and Relevant Statutes
¶15 We begin with an overview of CHIPS orders and the relevant statutes governing them. As a general matter, when a child is adjudicated CHIPS and removed from the parental home, the Wisconsin Statutes require the circuit court to orally inform the parent of any grounds for termination of parental rights which may be applicable to the parent, and to provide this information in a written CHIPS order as well. Specifically,
(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).
(Emphases added.)
¶16 The CHIPS dispositional order shall also list conditions the parent must meet in order for the child to be returned to the parental home.
¶17 The ground for termination of parental rights at issue in this case is continuing CHIPS, as set forth in
1. [The] child has been adjudged to be a child or an unborn child in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders under s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2).
. . . .
2.b. [The] agency responsible for the care of the child and the family or of the unborn child and expectant mother has made a reasonable effort to provide the services ordered by the court.
3. [The] child has been placed outside the home for a cumulative total period of 6 months or longer pursuant to an order listed under subd. 1., not including time
spent outside the home as an unborn child; . . . the parent has failed to meet the conditions established for the safe return of the child to the home; and, if the child has been placed outside the home for less than 15 of the most recent 22 months, . . . there is a substantial likelihood that the parent will not meet these conditions 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.
¶18 Previously, the third sub-part read:
[The] child has been outside the home for a cumulative total period of 6 months or longer pursuant to such orders not including time spent outside the home as an unborn child; and . . . the parent has failed to meet the conditions established for the safe return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 9-month period following the fact-finding hearing under s. 48.424.
¶19 In April 2018, the legislature amended this language, reconfiguring the timeframe within which the factfinder may
B. Statutory Construction
¶20 Sophie‘s CHIPS case straddled this amendment to the TPR statute, although her TPR case was filed after the amendment. Sophie argues that the “15 out of 22 months” timeframe began to run only after Sophie received written notice of the amended version of
¶22 Contrary to the court of appeals’ rationale in this case, providing notice to the parent of potential grounds for TPR means more than just reciting “abandonment” or “continuing need of protection or services” or any of the other 10 grounds for TPR. Without more explanation, the parent would be left guessing what a particular ground means or how the petitioner could prove it. A ground for TPR necessarily encompasses the sub-parts comprising that ground. See Ground, Black‘s Law Dictionary (11th ed. 2019) (“[t]he reason or point that something (as a legal claim or argument) relies on for validity.“). Indeed, a notification that parental rights can be terminated for continuing CHIPS conveys little in the absence of the three sub-parts that comprise continuing CHIPS. Without the three sub-parts, parents would have no understanding of the reasons they may lose their parental rights.
¶24 While notification “of any grounds for termination of parental rights” necessarily includes the statutory sub-parts comprising each ground, circuit courts must provide notice of only those grounds which “may be applicable” at the time the order is entered.
¶25 Indeed, the statute does not say that circuit courts must provide notice of grounds which will be applicable; this would assign the circuit courts an impossible task. When a circuit court removes a child from the parental home or continues a child‘s out-of-home placement, the legislature requires the circuit court to provide notice of TPR grounds that may be applicable in the future, and such notice is a prerequisite to the initiation of TPR proceedings. “We are not at liberty to disregard the plain words of the statute and we will not attempt to improve the statute by adding words not chosen by the legislature.” Michael D., 368 Wis. 2d at ¶17.
¶27 It is of no import that the legislature amended the third sub-part of continuing CHIPS in 2018 because there is no dispute that each time Sophie received TPR warnings, the circuit court orders contained the requisite notice under
¶28 This application of
¶29 The textually-expressed purposes of the Children‘s Code support our conclusion. In
(a) The courts and agencies responsible for child welfare should also recognize that instability and impermanence in family relationships are contrary to the welfare of children and should therefore recognize the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.
. . . .
(gr) To allow for the termination of parental rights at the earliest possible time after rehabilitation and reunification efforts are discontinued in accordance with this chapter and termination of parental rights is in the best interest of the child.”
¶30 Accepting Sophie‘s argument would require us to disregard the fact that Tyler‘s out-of-home placement extended well beyond 15 of the most recent 22 months preceding the filing of the TPR petition. Wisconsin Statutes preclude us from doing so. Under Wisconsin law, such instability and impermanence is contrary to Tyler‘s welfare.
C. Due Process
¶31 Sophie next argues that starting the “15 out of 22 months” timeframe in 2016 when Sophie received the initial CHIPS order and written notice referencing the prior version of
1. Retroactive Application
¶32 “As a general rule, legislation is presumed to apply prospectively unless the statutory language reveals, by express language or necessary implication, an intent that it apply retroactively.” Schulz v. Ystad, 155 Wis. 2d 574, 597, 456 N.W.2d 312 (1990) (citation omitted). This presumption is rooted in the “[s]trong common-law tradition” that “the legislature‘s primary function [is] declaring law to regulate future behavior.” Id. However, as the United States Supreme Court has held, “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute‘s enactment or upsets expectations based in prior law.” Landgraf v. USI Film Prod., 511 U.S. 244, 269 (1994). “Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 269-70.
¶33 In accordance with the United States Supreme Court‘s instruction, we apply a two-step analysis to determine whether applying the amended version of a statute constitutes a retroactive application. Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶¶16, 19, 244 Wis. 2d 720, 628 N.W.2d 842; J.R., 390 Wis. 2d 326, ¶30. “In the first step, we look to whether the legislature has expressly noted its intent that the statute be applied retroactively.” J.R., 390 Wis. 2d 326, ¶31. In the second step, we determine “whether the amended version of [the
¶34 First, as Wisconsin courts have already stated, “the legislature did not express its intent that the amended version of
¶35 Second, application of the amended statute has no retroactive effect as applied to Sophie‘s case. Sophie argues that applying the amended version of
¶36 As applied to Sophie, the legislature‘s only amendment to the statute eliminated the factfinder‘s consideration of the nine-month period following a factfinding hearing in a TPR proceeding involving a child who remained in out-of-home care for 15 of the most recent 22 months preceding the hearing. Sophie‘s responsibilities under the CHIPS dispositional order remained the same, and her failure to meet her court-ordered conditions exposed her to the same legal consequence: the filing of a TPR petition as soon as Tyler spent six months in out-of-home care.
¶37 Lastly, Sophie asserts that her due process rights were violated because she was deprived of her constitutionally protected right to parent her child, without “fair notice.” In making this argument, Sophie relies on one case: State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995). According to Sophie, Patricia A.P. established a due process violation any time a court terminates parental rights for conduct different than the conduct described in the notice. Sophie‘s characterization of Patricia A.P. is inaccurate.
¶38 In Patricia A.P., the court of appeals reversed an order terminating Patricia‘s parental rights to her son, concluding that the State violated her due process rights when “the notice of the grounds for termination she received” substantially differed from “the grounds the State employed to terminate her rights.” Id. at 857-58. The prior version of
¶39 The change made to
¶40 In Patricia A.P., that was simply not the case. In that case, the legislature had removed all language pertaining to a parent‘s “culpable conduct,” removing any showing of “neglect, willfulness, or inability” of the parent. Id. at 864. In light of the substantive differences between the legislative changes at issue in Patricia A.P. and the legislature‘s 2018 amendment to
IV. CONCLUSION
¶41 We hold: (1) the “15 out of 22 months” timeframe, as codified in the 2018 amended version of
By the Court.—The decision of the court of appeals is affirmed.
I
¶43 The County removed Sophie‘s son, Tyler, from Sophie‘s home in June 2016. Tyler‘s removal was followed by a court order, entered in August 2016, that Tyler was a child in need of protection and services (a “CHIPS” order). Such orders must provide the parent with notice “of any grounds for termination of parental rights . . . and of the conditions necessary for the child . . . to be returned to the home.”
¶44 In April 2018, the legislature altered
¶45 The County filed a petition to terminate Sophie‘s parental rights in June of 2018 and then an amended petition that September,2 stating that she had not met her safe-return conditions within the new, shortened timeframe. At that point, however, Sophie had no notice of the new timeframe. She received notice for the first time in a CHIPS order in October 2018, after the County filed the amended termination petition. Yet the County maintains that the stricter timeframe should apply, and that under the new timeframe, Sophie receives no “look-forward” consideration at trial.
¶46 Sophie responds that, by statute, her parental rights can be terminated only in the manner for which she had notice as of the time the County filed its amended petition. Accordingly, she argues, the August 2016 CHIPS order controls and her parental rights therefore cannot be terminated unless the County also proves
¶47 Sophie is correct on both accounts. The County‘s proceeding under the new law without first notifying Sophie violates the formal notice requirement in
II
¶48 Parents have a fundamental right to make decisions as to the “care, custody, and control” of their children. Michels v. Lyons, 2019 WI 57, ¶15, 387 Wis. 2d 1, 927 N.W.2d 486 (adding that this is “‘perhaps the oldest of the fundamental liberty interests recognized’ by the United States Supreme Court” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000))). The
¶49 Because parental rights are fundamental, the private interest carries significant weight in the balancing analysis. Indeed, terminating parental rights is a “grievous loss” that is at least as great as any criminal penalty. Shannon R., 286 Wis. 2d 278, ¶¶58-59. The government shares the parents’ private interest and must “assist parents” both in meeting the safe-return conditions and in “fulfilling their responsibilities as parents.”
¶50 To that end, the legislature has adopted “heightened legal safeguards” to ensure that parents’ “constitutional and other legal rights” are protected during termination proceedings. See
¶51 One important safeguard is the formal advance-notice requirement in
¶52 For these notice requirements to be constitutionally “effective,” the notice itself “must inform the affected party of what ‘critical issue’ will be determined at the hearing” and “give the charged party a chance to marshal the facts in [the party‘s] defense.” Nnebe v. Daus, 931 F.3d 66, 88 (2d Cir. 2019) (quoting Turner v. Rogers, 564 U.S. 431, 447 (2011) and Wolff v. McDonnell, 418 U.S. 539, 564 (1974)). As it pertains to notice regarding the termination of parental rights, constitutionally meaningful notice must include the timeframe applicable to each ground for termination. See
¶53 The County‘s proposed procedure here meets neither the statutory nor the constitutional notice requirements in any meaningful way. The first time Sophie received an order under
¶54 The majority opinion‘s approach papers over this constitutional defect. The majority introduces a new “best guess” concept under which the notice required by
¶55 Due process requires that a parent must have advance, formal notice of how her parental rights may be terminated. That notice must be given in a qualifying order identified in
¶56 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this dissent.