Eau Claire Cnty. Dep't of Human Servs. v. S.E. (In re T.L.E.-C.)

392 Wis.2d 726

946 N.W.2d 155

2020 WI App 39

IN RE the termination of parental rights to T.L.E.-C., a person under the age of 18:

Eau Claire County Department of Human Services, Petitioner-Respondent,

v.S.E., Respondent-Appellant.

Appeal No. 2019AP894

Court of Appeals of Wisconsin.

Submitted on Briefs: September 18, 2019

Opinion Filed: May 13, 2020

On behalf of the respondent-appellant, the cause was submitted on the briefs of Thomas B. Aquino, assistant public defender of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Sharon G. McIlquham, assistant corporation counsel, Eau Claire.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Sophie¹ appeals a nonfinal order in this termination of parental rights (TPR) case.² 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).³

¶2 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).

¶3 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.

¶4 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.

BACKGROUND

¶5 The following facts are undisputed. In June 2016, then-three-year-old Tyler was removed from Sophie's home pursuant to a temporary physical custody order. On August 17, 2016, Tyler was found to be a child in need of protection or services. Written notice of potential grounds for termination of Sophie's parental rights was provided to her with that CHIPS order, as required by WIS. STAT. § 48.356(2). Presumably, the CHIPS order listed continuing CHIPS as one of the potential TPR grounds.⁴ Effective April 6, 2018, the legislature changed one of the elements of the continuing CHIPS ground by amending WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1. This change is explained further below.

¶6 In June 2018, the Department petitioned for involuntary termination of Sophie's parental rights to Tyler, alleging the ground of abandonment. In September 2018, the Department filed an amended TPR petition, alleging two grounds for termination: (1) abandonment; and (2) continuing CHIPS. See WIS. STAT. § 48.415(1)(a)2., (2)(a). Both parties appear to agree that another CHIPS order was issued in October 2018 that included TPR warnings referring to the amended version of WIS. STAT. § 48.415(2)(a), although that order is not in the appellate record.

¶7 In April 2019, prior to a trial in the grounds phase, the parties disputed whether the TPR case should proceed under the prior or the amended version of the continuing CHIPS statute. Sophie argued that the prior version should apply, whereas the Department and Tyler's guardian ad litem argued in favor of the amended version. On May 6, 2019, the circuit court determined that the case would proceed under the amended version. Sophie now appeals.⁵

DISCUSSION

¶8 When our legislature amended WIS. STAT. § 48.415(2)(a)3. in April 2018, it changed the elements that the Department must prove at the grounds phase of a TPR proceeding. The prior version of subdivision 3. required the petitioner to show, among other things, that there was a "substantial likelihood" that the parent would not meet "the conditions established for the safe return of the child to the home" within "the 9-month period following the fact-finding hearing." We have previously referred to this requirement, which assesses the prospective likelihood of the child's return, as the "9-month failure to meet requirement." See Dane Cty. DHS v. J.R. , 2020 WI App 5, ¶13, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).

¶9 Our legislature eliminated the 9-month failure to meet requirement when it amended WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1. Subdivision 3. now provides:

[I]f the child has been placed outside the home for less than 15 of the most recent 22 months, [the petitioner must show] that there is a substantial likelihood that the parent will not meet the[ ] conditions [established for the safe return of the child to the parent's home] as of the date on which the child will have been placed outside the home for 15 of the most recent 22 months, not including any period during which the child was a runaway from the out-of-home placement or was residing in a trial reunification home.

Sec. 48.415(2)(a)3. Following Sophie's lead, we generally refer to this "amended" period as the "15-out-of-22-month timeframe."

¶10 Sophie does not request dismissal of the TPR petition altogether. Instead, she argues the Department should not be able to rely on the amended version of WIS. STAT. § 48.415(2)(a) to terminate her parental rights.⁶ Rather, she contends the Department should proceed under the prior, 9-month failure to meet requirement. Sophie generally makes three different arguments in this regard. She argues, first, that use of the amended version would be an impermissible retroactive application of the statute, and, second, that such an application would violate her due process rights. Third, she argues, as a matter of statutory construction, that if the amended statute applies in her TPR proceeding, the 15-out-of-22-month timeframe period can only begin with a CHIPS order including notice of that time period limitation. We addressed the first two issues she raises in our recent decision in J.R. , and we begin with those arguments.⁷

I. Retroactivity

¶11 Sophie makes two separate, but related, arguments asserting that if the amended version of WIS. STAT. § 48.415(2)(a) were employed, it would be an impermissible retroactive application of the statute. She maintains that as a matter of statutory interpretation, statutes must be "construed to avoid retroactive application of a substantive change in the law." Here, she contends the amended version would impair her right to parent her child—which she contends is a vested right. Relatedly, Sophie also argues that a retroactive application of the amended version would violate her rights to due process because it would deprive her of a constitutionally protected right to parent her child without "fair notice."

¶12 The critical question, therefore, is whether employing the amended version of WIS. STAT. § 48.415(2)(a) in the current posture of Sophie's TPR case is actually a retroactive application of that statute. The interpretation and application of a statute present questions of law that we review de novo. Brown Cty. Human Servs. v. B.P. , 2019 WI App 18, ¶10, 386 Wis. 2d 557, 927 N.W.2d 560. Similarly, we review de novo whether a legislative act violates due process. Neiman v. American Nat'l Prop. & Cas. Co. , 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160 ; see also J.R. , 390 Wis. 2d 326, ¶51, 938 N.W.2d 614 ("Whether a statute, as applied, violates the challenger's constitutional rights is a question of law this court reviews de novo.").

¶13 Sophie's arguments are nearly identical to those raised by the parent in J.R. Similar to Sophie, J.R.’s children were placed outside of his home pursuant to CHIPS orders that were issued before the legislature amended WIS. STAT. § 48.415(2)(a). See J.R. , 390 Wis. 2d 326, ¶5, 938 N.W.2d 614. After the amended version went into effect, the Dane County Department of Human Services petitioned for an order terminating J.R.’s parental rights to his children. Id. , ¶7. On appeal, J.R. argued that if the amended version was utilized during his TPR proceedings, it would constitute a retroactive application of that statute and thereby violate his due process rights. Id. , ¶¶28-30. We explained that courts use a two-step test to determine whether a statute operates retroactively. See id. , ¶30.

¶14 Relevant to Sophie's arguments in this case, the second step of the retroactivity analysis requires us to determine whether the amended version of WIS. STAT. § 48.415(2)(a) does, in fact, operate retroactively, notwithstanding the absence of any legislative directive regarding retroactivity. J....