In re the Termination of Parental Rights to Max G. W., 2006 WI 93 (Wis. 7/11/2006), 2005AP2-NM.

• Decision Date: 11 July 2006
• Docket Number: No. 2005AP2-NM.,2005AP2-NM.
• Citation: 2006 WI 93
• Parties: In re the Termination of Parental Rights to Max G. W., a Person Under the Age of 18: Kenosha County Department of Human Services, Petitioner-Respondent, v. Jodie W., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 1

2006 WI 93

In re the Termination of Parental Rights to Max G. W., a Person Under the Age of 18 Kenosha County Department of Human Services, Petitioner-Respondent, v. Jodie W., Respondent-Appellant-Petitioner.

No. 2005AP2-NM.

Supreme Court of Wisconsin.

Opinion Filed: July 11, 2006.

Appeal from the Circuit Court, Kenosha County, Mary Kay Wagner, Judge.

REVIEW of a decision of the Court of Appeals. Reversed.

For the respondent-appellant-petitioner there were briefs by Joseph W. Voiland, Lewis W. Beilin, Rebecca E. Frihart, and Reinhart Boerner Van Deuren s.c., Milwaukee, and oral argument by Joseph W. Voiland.

For the petitioner-respondent there was a brief and oral argument by Mary M. Hart, assistant district attorney.

An amicus curiae brief was filed by Cynthia A. Lepkowski on behalf of the Legal Aid Society of Milwaukee, Inc.

An amicus curiae brief was filed by John C. Talis, assistant corporation counsel, on behalf of the Dane County Department of Human Services.

LOUIS B. BUTLER, JR., J.

¶ 1 Jodie W. (Jodie) seeks review of an unpublished decision of the court of appeals, which affirmed an order of the circuit court, the Honorable Mary K. Wagner, Kenosha County, terminating Jodie's parental rights over Max W. (Max). Kenosha County DHS v. Jodie W., No. 2005AP2-NM, unpublished order (Wis. Ct. App. March 30, 2005).

¶ 2 The circuit court concluded that it was in Max's best interest to terminate Jodie's parental rights. The court determined that Max had been adjudged to be a child in continuing need of protection or services and had been outside the home for at least six months, that Jodie failed to meet the court-ordered conditions of return, that the department made reasonable efforts to assist Jodie in meeting those conditions, and that it was not likely that Jodie would meet the conditions of return within 12 months of the hearing. Upon finding that grounds had been established, the circuit court made a finding of parental unfitness and terminated Jodie's parental rights over Max.

¶ 3 We conclude that the record does not clearly and affirmatively demonstrate that Jodie's no contest plea was voluntarily, knowingly, and intelligently entered, and that therefore Jodie did not waive her challenge to the constitutionality of Wis. Stat. § 48.415(2)(a) (2003-04).¹ We also conclude that the circuit court's finding of parental unfitness was based on an impossible condition of return, without consideration of any other relevant facts and circumstances particular to the parent, and is therefore contrary to a constitutionally permissible interpretation of Wis. Stat. § 48.415(2)(a). Accordingly, we reverse the court of appeals.

I

¶ 4 Jodie is the natural birth mother of Max W., who was born on July 10, 2000. Jodie was the sole caregiver for Max for the first two years of his life.² Jodie was subsequently incarcerated in July 2002, based on convictions for operating while intoxicated, fourth offense, and for fleeing an officer.³ She arranged for her mother to care for Max while she was incarcerated. However, shortly after Jodie was sentenced, her mother contacted social services and informed them that she could no longer care for Max. The record contains no evidence of previous involvement by social services.

¶ 5 Kenosha County filed a petition for protection or services on September 11, 2002, and on November 25, 2002, Max was found to be a child in need of protection or services (CHIPS), pursuant to Wis. Stat. § 48.415(2). Max was placed with a foster family on November 25, 2002. Max continues to reside with this same foster family.

¶ 6 The circuit court entered a dispositional order on December 17, 2002. In its order, the court included a written and oral explanation of conditions that Jodie would be required to meet in order for Max to be returned to her home. The court also included warnings to Jodie regarding the grounds for termination of her parental rights (TPR) made applicable through the CHIPS order, pursuant to Wis. Stat. § 48.356.

¶ 7 The conditions required Jodie to (1) obtain, maintain and manage a suitable residence;⁴ (2) cooperate with the Division of Children and Family Services;⁵ (3) maintain regular contact with Max,⁶ (4) actively participate in services;⁷ (5) provide for the financial needs of Max;⁸ (6) participate in a counseling program specifically designed to address issues of domestic violence; and (7) successfully complete any conditions of probation.

¶ 8 On April 22, 2004, the Kenosha County Department of Human Services (Department) filed a petition to terminate Jodie's parental rights, pursuant to Wis. Stat. § 48.415(2). Kenosha County asserted that (1) the Department made a reasonable effort to provide the services ordered by the court; (2) Jodie failed to meet the conditions for the safe return of Max to her home, specifically noting that Jodie remained incarcerated and therefore had not obtained a suitable residence; and (3) there was a substantial likelihood that Jodie would not meet these court-ordered conditions for safe return within the next 12 months, specifically noting that Jodie remained incarcerated.

¶ 9 At Jodie's initial appearance, held on June 7, 2004,⁹ Jodie denied the allegations of grounds for termination of her parental rights. A jury trial was set for September 20, 2004.

¶ 10 At the September 20, 2004, hearing, Jodie acknowledged that she could not meet the "suitable residence" conditions within 12 months because she would not be able to present any evidence that she might be released within the next 12 months, and therefore entered a no contest plea. Although Jodie's plea was limited to the grounds portion, Jodie signed a form designed for persons contesting neither grounds nor final disposition.¹⁰ Jodie modified the plea form, specifically noting that she disagreed that alternatives to termination of her parental rights were available and explicitly contesting disposition.¹¹

¶ 11 Without hearing any testimony or evidence supporting the allegations in the petition,¹² the circuit court accepted Jodie's plea and determined that sufficient grounds had been established to find Jodie to be an "unfit" parent based upon her failure to meet the conditions of return established in the CHIPS order.

¶ 12 On October 22, 2004, the court held a dispositional hearing. Although the court had already made a finding of parental unfitness, the court took testimony on the allegations of unfitness at the urging of the Kenosha County District Attorney.

¶ 13 The district attorney established that Jodie had not satisfied the condition of return that required her to obtain suitable housing for Max. Max's caseworker for the Kenosha County Division of Children and Family Services similarly testified that because Jodie's first parole eligibility date was in March 2006, Jodie would not meet the conditions of return within the 12 months following the dispositional hearing. She also testified that Max was adjudged to be in need of protection and services, that termination of parental rights warnings were provided to Jodie, that conditions of return were imposed, and that Jodie failed to meet the conditions of return. Max's social worker further testified that Jodie had attempted to meet other conditions of return: Jodie had cooperated with the Division of Children and Family Services, participated in case planning to meet the conditions of return, was on a waiting list for other programming, and had provided regular correspondence to Max and called and visited with him whenever she was able and he was made available to her.

¶ 14 Jodie's trial counsel attempted to raise the issue that it was impossible for Jodie to have met the condition of return that she obtain a suitable residence, and that there was no possibility that Jodie could meet that condition of return within the following 12 months because Jodie was incarcerated. The circuit court judge stated that because the parties had already stipulated to the grounds for parental unfitness, she would not entertain the argument that it was impossible for Jodie to meet the conditions of return imposed as part of the CHIPS order.

¶ 15 At the end of the testimony on the grounds phase, the circuit court again determined that sufficient grounds had been established and found Jodie an "unfit" parent. During the second phase of the termination proceedings, the dispositional phase, the court determined that the Department had met its statutory requirement of assisting Jodie in meeting her conditions of return. The court recognized the impossibility of Jodie meeting the condition of return that required Jodie to supply appropriate housing while Jodie remained incarcerated, but found that this impossibility was the result of Jodie's own actions. In addition, the court found that when the Department began working with Max, he had "a mouth full of cavities" and had "significant anger and extensive temper tantrums upon the beginning of the transfer" of Max to his foster home. The court noted that Max had greatly improved while in foster care.

¶ 16 Upon completion of the dispositional phase, the circuit court determined that it was in Max's best interest to terminate Jodie's parental rights.¹³

¶ 17 Jodie was appointed counsel to appeal the termination of her parental rights. Jodie's appellate counsel filed a no-merit report, asserting that the plea colloquy satisfied the requirements of Wis. Stat. § 48.422(7), and the plea was therefore knowing and voluntary. The no merit report also asserted that the court appropriately considered Max's best interest in determining that Jodie's parental rights should be terminated. Jodie filed a response to the no-merit report, contending, among other things, that it was impossible for her to complete the conditions for return within 12 months, as required, because she was given a sentence that exceeded 12 months.

¶ 18 In a one-judge unpublished decision, the court of appeals summarily...