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Partial defense win! Challenges to sec. 48.415(1)(a)’s pleading requirements fail, but summary judgment reversed

Brown County Human Services v. B.P and T.F. 2018AP1259, 2018AP1278, 3/1/19, recommended for publication; case activity

T.F. argued that when the Department seeks to terminate parental rights on the grounds of abandonment in a case where the child is out of the home and a CHIPS order is in place, it must proceed under §48.415(1)(a)2., rather than (a)3. T.F. also argued that allowing the Department to proceed under (a)3 would result in an Equal Protection violation. The court of appeals rejected these arguments but held that the circuit court erred in granting summary judgment with respect to T.F. because material facts were in dispute over whether she had good cause for abandoning her daughter, Allie.

Pleading abandonment. T.F. argued the Department was required to plead abandonment under (a)2, which applies when there is a CHIPS order in place. It could not proceed under (a)3 because it does not specifically reference CHIPS orders. Furthermore, if (a)3 applied, then the Department failed to state a claim for which relief could be granted because this subdivision requires proof that the parent “left” the child with another person.  That can’t be met in cases involving out-of- home CHIPS placements.

The court of appeals provides a very thorough analysis of (a)3 versus (a) at ¶¶11-18, which TPR practitioners should read. The one-sentence version is that §48.415(1)(a) lacks restrictive language requiring the Department to plead only (a)2 when in a case where an out-of-home CHIPS order is present, and T.F.’s interpretation would require the court of appeals to ignore the word “any” in §48.415(a). As in, “Abandonment . . . shall be established by proving any of the following:” Opinion, ¶¶11-13.

Stating a claim under a(3). Here the dispute centered on the meaning of “left by a parent.” The court of appeals has previously held that the phrase could mean both the situation where the parent actively places the child with another person and the situation where the parent didn’t place the child elsewhere but could have discovered the whereabouts of the child and failed to visit or communicate with her. Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 706-707, 530 N.W.2d 34 (Ct. App. 1995). Rhonda R.D. involved a divorce order, so T.F. argued that it did not apply to her situation, which involves a CHIPS order.  The court of appeals held that she failed to explain why that distinction mattered so it rejected her argument. Opinion, ¶23.

Equal Protection. T.F. argued that if the Department may choose whether to proceed under (a)2 or (a)3, then it may treat similarly situated parents differently in violation of Equal Protection. The court of appeals held that even though T.F. did not technically challenge the constitutionality of a statute, her argument required it to determine whether termination of her rights under (a)3 would violate Equal Protection. T.F. did not notify the Attorney General of her argument pursuant to §806.04(11), so it refused to decide the matter.

This is a questionable reading of §806.04(11), which says: “If a statute . . . is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and entitled to be heard.” Because this is a confidential case, On Point doesn’t have access to the briefs.  However, the court of appeals itself acknowledged that T.F.’s argument was only that the court must interpret (a)2 and (a)3 so as to avoid unconstitutional results. Opinion, ¶26. One of the most frequently cited cases for that proposition is Jankowski v. Milwaukee County, 104 Wis. 2d 431, 312 N.W.2d 45 (1981), which notes that this is just a canon of statutory construction. It’s worth noting that the Attorney General was not involved in Jankowski.

Summary judgment. T.F. argued that the material facts were in dispute over whether she had good cause for abandoning Allie. Among other things, T.F. lived 100 miles away from Allie and lacked transportation for face-to-face visits. Got another, the Department was never clear about what “services” T.F. had to complete before it would permit her to visit Allie. So the court of appeals reversed the summary judgment against T.F. and remanded the case for fact-finding.

It treated B.P., Allie’s dad more harshly. He argued that he suffers from epilepsy, generalized anxiety disorder, depression, suicidal ideation, and ADD. Fifteen days after Allie was born, his brother died. A few months later his mother died. He argued that his mental health and emotional strain prevented him from communicating with Allie for 2 1/2 years. The court of appeals dismissed the argument because B.P. failed to offer an expert witness to establish a causal link between his failure to communicate and either his mental health or the death of his family members. No remand for a fact-finding.  Summary judgment against B.P. affirmed.

 

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