St. Croix Cnty. Dep't of Health & Human Servs. v. Michael D. (In re Termination of Parental Rights to Matthew D.)

368 Wis.2d 170

880 N.W.2d 107

In re the termination of parental rights to MATTHEW D., a person under the age of 18.

St. Croix County Department of Health and Human Services, Petitioner–Respondent–Petitioner,

v.Michael D., Respondent,Juanita A., Respondent–Appellant.

No. 2014AP2431.

Supreme Court of Wisconsin.

Argued Sept. 17, 2015.

Decided May 12, 2016.

For the petitioner-respondent-petitioner, there were briefs by Steven L. Miller and St. Croix Department of Health and Human Services, and oral argument by Steven L. Miller.

For the respondent-appellant, there was a brief by Susan E. Alesia, assistant state public defender, and oral argument by Susan E. Alesia.

REVIEW of a decision of the Court of Appeals. Reversed.

REBECCA G. BRADLEY, J.

¶ 1 The issues before us arise from St. Croix County's petition to terminate Juanita A.'s parental rights to her son, Matthew D., born March 23, 2009. The petition alleges both that Matthew was a child in continuing need of protection or services (“continuing CHIPS”), under Wis. Stat. § 48.415(2) (2013–14),¹ and that Juanita failed to assume parental responsibility, under Wis. Stat. § 48.415(6).² We must determine whether Juanita received proper notice under § 48.415(2), and, if so, whether sufficient evidence supports the remaining elements of the continuing CHIPS ground for termination. The notice issue requires us to clarify whether Waukesha County v. Steven H., 2000 WI 28, 233 Wis.2d 344, 607 N.W.2d 607, created an unequivocal rule that the statutorily prescribed written notice must be given in the last order placing a child outside his or her home and whether six months must pass after that last order before filing a termination of parental rights (“TPR”) petition.

¶ 2 We hold that the notice Juanita received satisfied the statutory notice requirement in a TPR action based on continuing CHIPS, and that the evidence was sufficient to support the remaining elements of continuing CHIPS set forth in Wis. Stat. § 48.415(2). We further hold that Steven H. did not establish a “last order, plus six-months rule”; rather, Steven H. emphasized that parents facing termination of parental rights based on continuing CHIPS must have received written notice in one or more court orders warning them that termination may occur. In Steven H., the last order contained the written notice; therefore, based on the facts in that particular case, the written notice required by § 48.415(2) was satisfied by the last order.

¶ 3 In adhering to the important principle of stare decisis, we do not overrule Steven H. Rather, we acknowledge that two sentences in that case directly contradict the plain language of Wis. Stat. § 48.415(2). As a result, our circuit and appellate courts have issued inconsistent decisions when addressing factual scenarios such as the one presented here where the last order does not comply with the statutory notice requirements, but the circuit court finds another order did comply and the parent was adequately warned that parental rights were at stake and how to prevent a termination of those rights. Since Steven H., circuit courts have had to decide whether to follow the plain statutory language when a parent did not receive notice in the last order or follow the two sentences in Steven H. that conflict with the court's extensive discussion of the legislative purpose of Wis. Stats. §§ 48.356(2) and 48.415(2) —to provide adequate notice to parents. Our opinion clarifies Steven H. so that our circuit courts are able to consistently apply the plain language of the statute, and ensure that parents facing termination of their parental rights receive the notice required by Wis. Stat. § 48.415(2) without delaying a very important purpose of these statutes—permanency for the child.

¶ 4 Accordingly, we clarify Steven H., leaving intact its analysis and discussion; however, the conflicting sentence in paragraph 3 is withdrawn³ and we clarify that the last sentence in paragraph 31 shall not be construed to create a last order, six-months rule. The language in the last sentence in paragraph 31 is limited to the facts of Steven H. where only the last order contained the written notice and the child had been out of the home for six months or longer.⁴ The plain language of § 48.415(2) does not require that the written notice must be in the last order or that six months must pass after the last order before the petition to terminate parental rights may be filed. Accordingly, we reverse the court of appeals' decision⁵ and affirm the circuit court's order⁶ terminating Juanita's parental rights to Matthew.

I. BACKGROUND

¶ 5 Juanita has physical, cognitive and mental health challenges. When Matthew was born on March 23, 2009, Juanita had two other sons in her home, 12–year–old John, who is autistic, and 3–year–old Henry, who was removed from Juanita's home in May 2009 because Juanita was unable to properly supervise and maintain reasonable control over Henry. Juanita's parental rights to Henry were terminated in May 2012. When Matthew was eight days old, he was removed from Juanita's home based on reports that Matthew's two older brothers had dropped him, shaken him, and were not properly supporting his head when holding him. Matthew was returned to Juanita at the end of May 2009.

¶ 6 In June 2009, the circuit court found Matthew to be a child in need of protection or services following an incident where police were called to Juanita's home and found Matthew struggling to breathe. Juanita told police Matthew had not taken a breath for a minute and his lips turned blue, but she did not want to call 911 for a “little problem like that.” Matthew was taken to the hospital for treatment. He recovered and remained in Juanita's care subject to certain conditions and with support and services in place to assist her. The circuit court extended this in-home placement continuing CHIPS order several times. At the end of July 2011, when Matthew was almost two and one-half years old, he was again removed from Juanita's home, based on concerns that Juanita could not properly care for him and that her inability to adequately supervise Matthew put him in danger.

¶ 7 In August 2011, the circuit court issued a written CHIPS order changing Matthew's placement from Juanita's home to a foster home. At a court hearing on October 5, 2011, where Juanita appeared with her lawyer, the circuit court read the TPR warnings to Juanita, and on October 11, 2011, the court issued a dispositional order amending the August order and attaching the conditions Juanita was required to meet before Matthew could be returned to her home. This October 11 order also had attached a “Notice Concerning Grounds to Terminate Parental Rights” that Juanita had signed. Under Wis. Stat. § 48.356, whenever the court orders a child to be placed outside the home because the child has been found to be in need of protection or services, the court must orally inform the parent—if present in court—of any applicable grounds for termination of parental rights and the conditions necessary for the child to be returned to the home. Additionally, any written order placing a child outside the home, or extending the out-of-home placement, must contain this information.

¶ 8 Juanita returned to the circuit court on December 12, 2011, where the court again gave oral TPR warnings to Juanita and ordered an extension of the October 11 dispositional order. The extension contained a provision notifying Juanita that: “All conditions of the dispositional order/consent decree remain in effect,” but the court did not attach the separate TPR warnings. Juanita appeared for another hearing on September 6, 2012, where the circuit court again gave her oral TPR warnings. On September 11, 2012, the circuit court issued another extension order, which contained the same language noted above: “All conditions of the dispositional order/consent decree remain in effect” but it did not attach separate TPR warnings.

¶ 9 St. Croix County first filed a TPR petition as to Matthew in January of 2013, but it was dismissed without prejudice on June 12, 2013 because the prosecutor inadvertently failed to appear for the pre-trial hearing. On June 18, 2013, St. Croix County filed a second TPR petition seeking to terminate Juanita's parental rights based on continuing CHIPS under Wis. Stat. § 48.415(2), and failure to assume parental responsibility under Wis. Stat. § 48.415(6). On September 4, 2013, the circuit court issued another extension order, which contained the same language noted above: “All conditions of the dispositional order/consent decree remain in effect” but it did not attach separate TPR warnings.⁷

¶ 10 The fact-finding hearing, tried to the court, occurred in December 2013. After St. Croix County presented its case, Juanita moved the circuit court to dismiss the TPR petition, arguing failure of proof on the elements and inadequate notice contrary to Wis. Stat. § 48.415(2) and Wis. Stat. § 48.356. The circuit court denied both motions. With respect to the notice issue, the circuit court ultimately ruled Steven H. did not establish an unequivocal “last order, plus six-months rule.” Instead, it held that “substantial compliance” with the notice statute was sufficient. It reached this conclusion based on Steven H. 's emphasis on the legislative purpose of the Children's Code, the court of appeals' interpretation of Steven H. in Waushara County v. Lisa K., 2000 WI App 145, 237 Wis.2d 830, 615 N.W.2d 204, and Steven

H.

's discussion that the purpose of the notice statutes “is meant to ensure that a parent has adequate notice of the conditions with which the parent must comply for a child to be returned to the home. The notice is also meant to forewarn parents that their parental rights are in jeopardy.” Steven H., 233 Wis.2d 344, ¶ 37, 607 N.W.2d 607. The circuit court then found the notice given to Juanita sufficient to comply with the statutes:

[Notice to Juanita] was sufficient under §

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