On April 6, 2018, the Wisconsin Legislature revised the involuntary ground for termination of parental rights based on continuing need of protection or services (continuing CHIPS).

The new Wis. Stat. section 48.415(2) modified the fourth element of the ground. Specifically, if a child had been in foster care for 15 of the most recent 22 months, the petitioner is no longer required to prove that there was a substantial likelihood that the parent would not meet the conditions of return within nine months from the trial date. Pursuant to this change, the courts issued a revised form for Notice Concerning Grounds to Terminate Parental Rights, JD-1753.

Old or New?

Now that the statute has been revised and warnings modified, the question is deciding which version of the grounds to proceed under at the grounds phase trial – the “old version” or the “newly revised version.”

This is important, because under the newly revised version of continuing CHIPS, the evidence presented by both the petitioner and the respondent is severely limited. The petitioner would likely be restricted in presenting any evidence prior to the child’s placement in out of home care.

Under LaCrosse County Department of Human Services v. Tara P.,¹ the petitioner has generally been permitted to present pattern evidence of respondent parent’s past behaviors if it is reasonably related to the respondent parent’s likelihood to not meet the conditions of return in the next nine months.

If the petitioner is no longer required to prove the projective element, any evidence of negative behavior by the respondent parents prior to children’s detention is likely no longer relevant. Furthermore, for both the petitioner and the respondent parent, any progress or lack of progress on meeting the conditions after the TPR petition is filed may also be deemed not relevant, since the jury is no longer being asked to determine the future likelihood of failing to meet the conditions.

Two Published Decisions

There are two published decisions related to the revised continuing CHIPS ground since the law was enacted in April 2018: Dane County Department of Human Services v. J.R.² and Eau Claire County Department of Human Services vs. S.E.³

Dane County DHS v. J.R. was an interlocutory appeal by the respondent parent asking the appeals court to determine the version of the continuing need ground the jury should be presented with, when there are two CHIPS dispositional orders with different warnings attached.

J.R. was first warned under the old continuing CHIPS statute in May 2017, August 2017, and February 2018. In May 2018, the county filed a revision, asking that J.R. be warned under the new statute. The court granted the request, and entered identical orders to those previously entered, but included the newly revised continuing CHIPs warnings.

In November 2018, the county filed a TPR petition, alleging the ground of continuing CHIPS under the revised ground. The appeals court held that the county was only required to prove the continuing CHIPs ground as alleged in the revised statute – without the projective element – because that was the law in effect at the time the petition was filed.

The court rejected both of J.R.’s claims that the newly revised statute should not apply under Wis. stat. section 990.04 because the action was already pending, and that an application of the new law was retroactive and therefore unconstitutional as applied to him.

Eau Claire County DHS vs. S.E. was another interlocutory appeal, with the respondent parent asking the court of appeals to determine which version of the continuing needs ground the jury should be presented with. However, in this case, the only CHIPS dispositional orders entered in the underlying CHIPS case included warning under the old version of the statute. The respondent mother received warnings attached to the original CHIPS dispositional order in August 2016 under law at the time, the old version.

The county filed a TPR petition in June 2018 alleging the continuing need ground under the newly revised statute, requiring them to only prove the first three elements of the ground.

The appeals court again held that the county must proceed under the newly revised CHIPs ground, because that was the law in effect when the TPR petition was filed in June 2018. The court dismissed each of the respondent mother’s arguments:

• that the amended law was an impermissible retroactive application of the statute;

• that the amended statute violates her due process law; and

• that as a matter of statutory construction, the 15 out of 22 month timeframe period can only begin with a CHIPS order including notice of that time period.

Relying on its reasoning from J.R., the court of appeals held that this statute was not a retroactive application because the TPR petition was an entirely new action, and the respondent parent did not have a vested interest to protect.

The court further distinguished this case from State v. Patricia A.P.,⁴ because the statutory change in Patricia A.P changed “the quality of the very nature of the acts leading to termination,” while with this most recent statutory change, the nature of the conduct the petitioner needs to prove remains substantially the same.⁵

A Decision Forthcoming

Eau Claire County DHS v. S.E. was accepted for review by the Wisconsin Supreme Court in October 2020, and is scheduled for oral arguments on Feb. 25, 2021. The decision is likely to have significant impact on the continuing CHIPS ground moving forward, as long as there still linger CHIPs dispositional orders with both old and new TPR warnings.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

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Endnotes

¹ LaCrosse County Department of Human Services v. Tara P., 2002 WI App. 84.

² Dane County Department of Human Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).

³ Eau Claire County Department of Human Services vs. S.E., 2020 WI App 39, 392 Wis.2d 726, 946 N.W.2d 155.

⁴ State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995).

⁵ 2020 WI 39, ¶¶21-23.