CHIPS – Due Process Violation

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WI Supreme Court

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

Case No.: 2021 WI 56

Focus: CHIPS – Due Process Violation

If a circuit court determines a child is in need of protection or services (CHIPS) due to a parent’s neglect, refusal, or inability (for reasons other than poverty) to provide necessary care to the extent that the physical health of the child is seriously endangered, the circuit court may order the child removed from the parental home. Wis. Stat. §§ 48.13, 48.345 (2017-18). Wisconsin law declares that “instability and impermanence in family relationships are contrary to the welfare of children” and recognizes “the importance of eliminating the need for children to wait unreasonable periods of time for their parents to correct the conditions that prevent their safe return to the family.” Wis. Stat. § 48.01(1)(a) (emphases added). Toward that end, Wisconsin law allows the filing of a petition to terminate parental rights if the child has remained in out-of-home care for at least six months. Wis. Stat. § 48.415(2)(a)3.

In 2018, the legislature amended Wis. Stat. § 48.415(2)(a)3, a portion of the continuing CHIPS ground for the involuntary termination of parental rights. This statutory amendment occurred during the pendency of Sophie’s court proceedings involving her child, Tyler, who was removed from Sophie’s home and adjudged CHIPS in 2016. Sophie’s CHIPS case commenced under the 2016 version of the statute, and two months after the 2018 statutory amendment, the Eau Claire Department of Human Services (the Department) filed a petition to terminate Sophie’s parental rights. The amended version of § 48.415(2)(a)3, among other things, eliminated consideration by the factfinder of the likelihood the parent would meet the conditions for return of the child to the parent’s home if the child had already been placed outside the parent’s home for at least “15 of the most recent 22 months.” Sophie challenged the applicability of the amended version of § 48.415(2)(a)3 during her TPR proceedings. The circuit court decided the new version applied. The court of appeals agreed with the circuit court.

Sophie raises two issues: (1) whether as a matter of statutory construction, the “15 out of 22 months” timeframe began to run only after Sophie received written notice of the amended version of Wis. Stat. § 48.415(2)(a)3 (2017-18); and (2) whether starting the “15 out of 22 months” timeframe in 2016 when Sophie received the initial CHIPS order with written notice referencing the prior version of § 48.415(2)(a)3 (2015-16) violates her due process rights.

We hold: (1) the “15 out of 22 months” timeframe, as codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a)3 (2017-18), began to run when Sophie received written notice accompanying the initial 2016 CHIPS order; and (2) starting the “15 out of 22 months” timeframe in 2016 does not violate Sophie’s due process rights. Accordingly, we affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent: DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

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Derek A Hawkins is Corporate Counsel, at Salesforce.