Eau Claire Cnty. Dep't of Human Servs. v. S.E. (In re T.L.E.-C.)

Citation2021 WI 56,960 N.W.2d 391
Decision Date10 June 2021
Docket NumberNo. 2019AP894,2019AP894
Parties 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.
CourtUnited States State Supreme Court of Wisconsin

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.

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.

REBECCA GRASSL BRADLEY, J.

¶1 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. Wis. Stat. §§ 48.13, 48.345 (2017-18).1 Wisconsin law declares that "instability and impermanence in family relationships are contrary to the welfare of children" and recognizes "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." Wis. Stat. § 48.01(1)(a) (emphases added). Toward that end, Wisconsin law allows the filing of a petition to terminate parental rights if the child has remained in out-of-home care for at least six months. Wis. Stat. § 48.415(2)(a)3.

¶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." Wis. Stat. § 48.01(1)(a). In achieving that objective, the statutes task "[t]he courts and agencies responsible for child welfare, while assuring that a child's health and safety are the paramount concerns," with "assist[ing] parents and the expectant mothers of unborn children in changing any circumstances in the home which might harm the child or unborn child, which may require the child to be placed outside the home or which may require the expectant mother to be taken into custody." Id. Conditions with which the parent must comply in order to have her child returned to her care must be set forth in the CHIPS dispositional order. Wis. Stat. § 48.355(2)(b)7. Should these efforts fail to change the circumstances which led to the removal of the child from the parental home, Wisconsin law requires a petition for termination of parental rights (TPR) to be filed once the child has been placed outside of his home for 15 of the most recent 22 months. Wis. Stat. §§ 48.415(2)(a) 3, 48.417(1)(a). This mandate codifies federal law, specifically the Adoption and Safe Families Act (ASFA). Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115.2

¶3 In 2018, the legislature amended Wis. Stat. § 48.415(2)(a) 3, a portion of the continuing CHIPS ground for the involuntary termination of parental rights. This statutory amendment occurred during the pendency of Sophie's court proceedings involving her child, Tyler, who was removed from Sophie's home and adjudged CHIPS in 2016.3 Sophie's CHIPS case commenced under the 2016 version of the statute, and two months after the 2018 statutory amendment, the Eau Claire Department of Human Services (the Department) filed a petition to terminate Sophie's parental rights. The amended version of § 48.415(2)(a) 3, among other things, eliminated consideration by the factfinder of the likelihood the parent would meet the conditions for return of the child to the parent's home if the child had already been placed outside the parent's home for at least "15 of the most recent 22 months."4 Sophie challenged the applicability of the amended version of § 48.415(2)(a) 3 during her TPR proceedings. The circuit court decided the new version applied.5 The court of appeals agreed with the circuit court.6

¶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 Wis. Stat. § 48.415(2)(a) 3 (2017-18); and (2) whether starting the "15 out of 22 months" timeframe in 2016 when Sophie received the initial CHIPS order with written notice referencing the prior version of § 48.415(2)(a) 3 (2015-16) violates her due process rights.

¶5 We hold: (1) the "15 out of 22 months" timeframe, as codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a) 3 (2017-18), began to run when Sophie received written notice accompanying the initial 2016 CHIPS order; and (2) starting the "15 out of 22 months" timeframe in 2016 does not violate Sophie's due process rights. Accordingly, we affirm the decision of the court of appeals.

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 Wis. Stat. § 48.356(2). Both parties agree that the written notice identified continuing CHIPS as a possible ground for termination.7 The notice referenced the three sub-parts of continuing CHIPS that existed in the 2016 version of Wis. Stat. § 48.415(2)(a) (2015-16). At that time, the third sub-part provided that, in order to terminate parental rights under the continuing CHIPS ground for termination of parental rights, the factfinder at a TPR trial would need to determine that there was a "substantial likelihood" the parent would not meet the conditions established for the safe return of the child to the home within the nine-month period following the date of trial. § 48.415(2)(a) 3 (2015-16). At the initial hearing and at four subsequent court hearings, the circuit court gave Sophie written and oral notice that her parental rights could be terminated due to continuing CHIPS.

¶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; Wis. Stat. § 48.415(2)(a) 3 (2017-18). The amended version, among other things, eliminated any prospective consideration of the likelihood the parent would meet the conditions for the safe return of the child to the home if the child had already been placed outside the parent's home for at least "15 of the most recent 22 months."

¶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 Department amended its petition to add continuing CHIPS as a ground for termination. During the pendency of Sophie's TPR proceedings, in October 2018 the circuit court entered another CHIPS order; this time, when the circuit court identified continuing CHIPS as a potential ground for termination of Sophie's parental rights to Tyler, the written notice referenced the amended version of Wis. Stat. § 48.415(2)(a) 3 (2017-18).8

¶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 Wis. Stat. § 48.415(2)(a) 3 should apply to Sophie's case. While Sophie contended the prior version applied, the Department and Tyler's guardian ad litem asserted the 2018 amended version applied. In May 2019, the circuit court ruled that the amended version applied, noting:

[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...

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