Dane Cnty. Dep't of Human Servs. v. J.R. (In re K.T.)

• Decision Date: 27 November 2019
• Docket Number: 2019AP821,Appeal Nos. 2019AP820
• Citation: 938 N.W.2d 614,390 Wis.2d 326,2020 WI App 5
• Parties: 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. 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.
• Court: Wisconsin Court of Appeals

390 Wis.2d 326

938 N.W.2d 614

2020 WI App 5

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.

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.

Appeal Nos. 2019AP820

2019AP821

Court of Appeals of Wisconsin.

Submitted on Briefs: August 26, 2019

Opinion Filed: November 27, 2019

On behalf of the respondent-appellant, the cause was submitted on the briefs of Colleen Marion, assistant state public defender of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Eve M. Dorman, deputy corporation counsel for Dane County.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

FITZPATRICK, P.J.

¶1 In these consolidated appeals, J.R. appeals non-final orders of the Dane County Circuit Court.¹ Those orders denied J.R.’s motions requesting the circuit court to rule that, in order to establish the continuing CHIPS ground for the termination of J.R.’s parental rights, the Dane County Department of Human Services (the County) must prove the elements for that ground set forth in WIS. STAT. § 48.415(2)(a) (2015-16) rather than the elements set forth in § 48.415(2)(a) (2017-18).²

¶2 At the time the orders placing J.R.’s children outside the home were first entered in two CHIPS cases, WIS. STAT. § 48.415(2)(a) (2015-16) set out the elements of the continuing CHIPS ground and the orders referred to those elements. The continuing CHIPS ground elements were changed when § 48.415(2)(a) (2015-16) was amended by 2017 Wis. Act 256, § 1. See § 48.415(2)(a) (2017-18).³ About seven months after that amendment took effect, the County filed the petitions to terminate J.R.’s parental rights and the petitions stated the elements set forth in the amended version of the statute.

¶3 J.R. contends that the County is required to prove the elements of the prior version of WIS. STAT. § 48.415(2)(a), whereas the County contends that it is required to prove the elements of the amended version of that statute. For the reasons set forth below, we conclude that the County is required to establish the elements for the ground of continuing CHIPS set forth in the amended version of § 48.415(2)(a). Accordingly, we affirm the orders of the circuit court.

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 WIS. STAT. § 48.356(2).⁴ In August 2017 and February 2018, orders continuing the children’s placement outside the home were entered in the CHIPS cases. Those orders also contained the required written notice of potential grounds for termination of J.R.’s parental rights. See § 48.356(2). Each written notice mentioned above indicated continuing CHIPS as a possible ground for termination of J.R.’s parental rights and set forth the elements of that ground as stated in the prior version of WIS. STAT. § 48.415(2)(a).

¶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 WIS. STAT. § 48.415(2)(a). The court granted the County’s request and, on May 3, 2018, the court entered orders in both CHIPS cases that were identical to the previous CHIPS orders, except that the May 2018 orders set forth the revised elements for terminating parental rights under the amended version of § 48.415(2)(a). With each order, J.R. was provided the statutorily required written notice of potential grounds for termination of his parental rights, which included continuing CHIPS under the amended version of § 48.415(2)(a). See WIS. STAT. § 48.356(2).

¶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 WIS. STAT. § 48.415(2)(a).⁵

¶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 WIS. STAT. § 48.415(2)(a) ; and (2) prosecute the TPR petitions pursuant to only the prior version of the statute. See WIS. STAT. § 48.42(1)(c)2. (as a prerequisite to the prosecution of a TPR case, the petition must "set forth with specificity" the grounds for the proposed termination "under [§] 48.415"). The court denied J.R.’s motion. J.R. appeals.

¶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 WIS. STAT. § 48.415(2)(a). Accordingly, the sole issue as framed by the parties is whether the prior version, or the amended version, of the statute must be applied in these circumstances.

¶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 WIS. STAT. § 48.415(2)(a) set out the four elements of the continuing CHIPS ground. The first three elements in the prior and amended versions of § 48.415(2)(a) are identical and are not at issue in this appeal.⁶

¶13 The difference between the prior version of WIS. STAT. § 48.415(2)(a) and the amended version of that statute is the fourth element. The fourth element in the prior version of the statute required that the petitioner show that there is "a substantial likelihood that the parent [would] not meet [the] 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.

WIS. STAT. § 48.415(2)(a)3. (2017-18); 2017 Wis. Act 256, § 1.

¶15 Third, we describe the requirements of WIS. STAT. ch. 48 as of the time the County filed its TPR petitions and how those requirements affect our analysis. At all times pertinent to these TPR proceedings, the statute which sets forth the grounds for termination of parental rights, WIS. STAT. § 48.415, has required the following: "At the fact-finding hearing the court or jury shall determine whether grounds exist for the termination of parental rights.... Grounds for termination of parental rights shall be one of the following [ten separate statutory bases for termination, including continuing CHIPS, are then described]." Sec. 48.415 (emphasis added). Further, WIS. STAT. § 48.42 sets out the requirements for a termination of parental rights petition and states in relevant part that the petition "shall set forth with specificity ... [a] statement of the grounds for involuntary termination of parental rights under [§] 48.415. " Sec. 48.42(1)(c)2. (emphasis added). Therefore, the only bases for termination of parental rights are the statutory grounds enunciated in § 48.415. See Tammy W-G. v. Jacob T. , 2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854 ("The focus of [the grounds phase] is whether the § 48.415 ground has been met ....").

¶16 As already mentioned, by the time the County filed its TPR petitions in November 2018, the prior version of WIS. STAT. § 48.415(2)(a) (including the 9-month failure to meet requirement) had been amended. The County contends, and J.R. does not dispute, that when the County filed the TPR petitions, the continuing CHIPS ground as set forth in the amended version of the statute was the only version of that ground that could form the basis of the TPR petitions pursuant to the dictates of WIS. STAT. §§ 48.415 and 48.42, as described above. In other words, the TPR petitions the County filed in November 2018 could not have alleged the continuing CHIPS ground pursuant to the prior version of § 48.415(2)(a), and met the explicit requirements of §§ 48.415 and 48.42 because the prior version of the statute was no longer a part of § 48.415 and no longer available to the County as a ground for the termination of J.R.’s parental rights. As a result, if we consider only the requirements of WIS. STAT. ch. 48, as that chapter existed when the County filed its TPR petitions, J.R.’s contention must fail.

¶17 J.R. advances two arguments why the above-mentioned requirements of WIS. STAT. §§ 48.415 and 48.42 do not control the question of whether the prior version or amended version of the statute must be applied in these TPR proceedings, and we discuss each in turn.

WIS. STAT. II. The Amended Version of § 48.415(2)(a) Applies.

¶18 First, J.R. contends that, pursuant to WIS. STAT. § 990.04, the prior version of WIS. STAT....