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Termination of Parental Rights

By: Derek Hawkins//June 10, 2020//

Termination of Parental Rights

By: Derek Hawkins//June 10, 2020//

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WI Court of Appeals – District III

Case Name: Eau Claire County Department of Human Services, v. S.E.,

Case No.: 2019AP894

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Termination of Parental Rights

Sophie appeals a nonfinal order in this termination of parental rights (TPR) case. That order denied Sophie’s motion asking the circuit court to determine that the Eau Claire County Department of Human Services (the Department) must prove the elements of the continuing CHIPS ground for a TPR as previously set forth in WIS. STAT. § 48.415(2)(a) (2015-16), as opposed to the elements now set forth in § 48.415(2)(a) (2017-18).

In June 2016, Sophie’s son, Tyler, was placed outside of her home. In August 2016, the circuit court entered a CHIPS order, and Tyler’s placement continued with the issuance of subsequent CHIPS orders. At the initial out-of-home placement hearing and at four subsequent permanency plan review hearings, the court, as required by statute, gave Sophie written and oral notice that her parental rights could be terminated pursuant to the continuing CHIPS ground. As relevant here, that ground previously required the Department to prove there was a substantial likelihood that Sophie would not meet the conditions established for the return of Tyler to her home within nine months following a TPR fact-finding hearing. See WIS. STAT. § 48.415(2)(a)3. (2015-16).

Our legislature changed the continuing CHIPS ground’s elements in April 2018 when it passed 2017 Wis. Act 256, § 1, which amended WIS. STAT. § 48.415(2)(a)3. (2015-16). The amended version eliminated a prospective analysis under the continuing CHIPS ground for a TPR if the child had already been placed outside the parent’s home for at least “15 out of the most recent 22 months.” Compare § 48.415(2)(a)3. (2015-16), with § 48.415(2)(a)3. (2017-18). A few months after the amendment took effect, the Department petitioned to terminate Sophie’s parental rights based on the continuing CHIPS ground. The petition stated the continuing CHIPS elements set forth by the amended version of the statute.

Sophie asserts the amended version of WIS. STAT. § 48.415(2)(a) should not be used as a basis to terminate her parental rights because the notice she was given when the CHIPS orders were first issued included the continuing CHIPS elements set forth in the prior version of the statute. For the reasons set forth, we disagree. In Sophie’s TPR proceedings, the circuit court must employ the current, amended version of § 48.415(2)(a). We also disagree with Sophie that applying the amended version of the statute to her circumstances violates her constitutional rights to due process. We therefore affirm the order of the circuit court.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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