Termination of parental rights not warranted where CHIPS order ended within three months 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 24, 2011 – If court order removes a child in need of protection or services (CHIPS) from a parent’s home but the order is terminated within three months, a court may not permanently terminate parental rights based on abandonment.

Wis. Stat. section 48.415(1)(a)2 allows a court to terminate parental rights if the child “has been placed, or continued in a placement, outside the parent's home by a court order” and “the parent has failed to visit or communicate with the child for a period of 3 months or longer.”

A circuit court terminated a mother’s parental rights under section 48.415(1)(a)2, but in Heather B. v. Jennifer B., 2010AP2528 (Jan. 20, 2011), the District IV Wisconsin appeals court reversed, holding that the three-month abandonment period must fall within the duration of the CHIPS-based placement of the child outside the parent’s home.

In December 2008, the Douglas County Circuit Court order Jennifer’s son removed from her home based on a need for protection and services (CHIPS order) and placed the child with his father and stepmother. While the order was in effect, a separate family court proceeding gave the child’s father primary placement. As a result, the CHIPS order was terminated.

In June 2009, the son’s stepmother, Heather, petitioned the Dane County Circuit Court to terminate Jennifer’s parental rights under section 48.415(1)(a)2. The alleged abandonment period began two weeks before the CHIPS order was terminated.

The circuit court terminated Jennifer’s parental rights under the abandonment provision, reasoning that notice of possible termination based on abandonment is the relevant issue and termination of a CHIPS order does not undo the impact of section 48.415(1)(a)2.

But Jennifer argued, and the appeals court agreed, that section 48.415(1)(a)2 requires the three-month abandonment period to “fall within the duration of the CHIPS-based placement.”

“[W]hen a CHIPS order has been terminated or allowed to lapse, it is reasonable to assume the parental situation has changed and the reason for the shorter abandonment period is no longer present,” wrote Judge Paul Lundsten. “At this point, the statutory scheme reverts to the more general six-month abandonment requirement.”

Thus, the appeals court held that section 48.415(1)(a)2 did not provide a grounds for termination of parental rights where the CHIPS order did not remain in effect for the full three-month period of abandonment alleged.

The court also noted that the analysis would be the same if the underlying placement was authorized by section 938.356(2) concerning written orders placing juveniles outside the home.