A statutory change went into effect April 6, 2018, revising Continuing Need of Protection or Services (Continuing CHIPS) – a ground for involuntary termination of parental rights, pursuant to Wis. Stat. section 48.415(2).
Three Elements Remain the Same
Continuing CHIPS is shown by proving four elements by evidence that is clear, satisfactory and convincing.
The first three elements remain the same:
1) that the child has been in out of home placement for six months or longer, and placed, or continued in a placement, outside his or her home pursuant to one or more court orders containing the notice required by law;
2) that the agency responsible has made a reasonable effort to provide the services ordered by the court; and
3) that the parent has failed to meet the conditions established for the safe return of the child to the home at the date of the filing of the Termination of Parental Rights (TPR) petition.
The Revised Fourth Element
The recent change affects the fourth element of the ground.
Formerly, the fourth element was proven by evidence showing a substantial likelihood that a parent will not meet these conditions within the nine-month period following the fact-finding hearing.
Rebecca A. Kiefer, Marquette 2003, is an assistant district attorney and team captain of the TPR unit for Milwaukee County, where, since 2005, she has focused on helping children in the foster care system find permanence in safe and loving homes.
With the statutory change, the fourth element is now proven by evidence that shows that, if the child was placed outside the home for less than 15 of the most recent 22 months, there is a substantial likelihood that the parent will not meet these conditions as of the date on which the child will have been placed outside the home for 15 of the most recent 22 months.
If a child has been placed outside of the home for 15 or more of the most recent 22 months, the petitioner must only prove the first three elements to meet their burden under the newly revised Continuing CHIPS.
Pursuant to this change, the courts have issued a revised form for Notice Concerning Grounds to Terminate Parental Rights, JD-1753.
Using the New Ground
The petitioner who seeks to use this ground should proceed with caution, carefully examining the underlying CHIPS orders and the TPR warnings that are attached to those orders.
The court has a duty to warn the parent regarding possible grounds for termination of parental rights when placing the child in an out of home placement.1 Our courts have found that it is a denial of due process to terminate parental rights on grounds substantially different from those that the parent was warned of under Wis. Stat. section 48.356.2
When the state warns a parent that his or her rights to a child may be lost because of the parent’s future conduct, if the state then substantially changes the type of conduct that may lead to the loss of rights without notice to the parent, the state applies a fundamentally unfair procedure.3
The Fourth Element in State v. Patricia A.P.
In State v. Patricia A.P.,4 the underlying CHIPS orders used TPR warnings citing a version of Continuing CHIPS where the fourth element was that the parent has substantially neglected, willfully refused, or was unable to meet the conditions established for the return of the child to the home, and that there is a substantial likelihood that the parent will not meet these conditions in the future.
In May 1994, the fourth element was changed to “the parent has failed to demonstrate substantial progress toward meeting the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions within the 12-month period following the fact-finding hearing.”
In September 1994, the petitioner filed a TPR petition alleging the new Continuing CHIPS ground, despite the old warnings contained in the underlying CHIPS orders.
The Court of Appeals found that the change in the type of conduct for which termination is possible changes the burden on the state.
The ground under the new law is far easier to establish than the grounds under the old law.
Under the new law, the ground for termination is purely objective: whether there is a lack of substantial progress.
Under the old law, the grounds are more stringent and are partly subjective. Because the parent was deprived of her parental rights without due process, the TPR order was reversed.5
The Duty to Warn
Not every ground requires that a parent be notified about the possible termination of their parental rights. For example, when termination is under Wis. Stat. section 48.415(8) for murdering the other parent, no notice under sub. (1) of the conditions necessary for the return of the child is necessary as the grounds for termination – the murder – cannot be remedied.6
The underlying purpose of the court’s duty to warn a parent of “any grounds for termination of parental rights under s. 48.415 which may be applicable” is to give a parent every possible opportunity to remedy the situation.7
This is illustrated in the warning given to parents that outlines the conditions necessary for the return of the child, and the language of section 48.356 itself, which states that at the time that the parents are informed of the grounds for TPR, the court must also inform them of the conditions necessary for the child to be returned home.8
Under section 48.415(2), the parent has the ability to remedy the situation – therefore, the court must inform the parent of the possible ground for TPR and then give the parent guidance on how the children may be returned home.9
So, the wise practitioner will let the warnings attached to your underlying CHIPS orders be your guide when determining which version of Continuing CHIPS is appropriate – and proceed accordingly.
1 See Wis. Stat. § 48.356.
2 State v. Patricia A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995)
3 Id. at 863.
4 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995)
5 Id. at 864-865.
6 Winnebago County DSS v. Darrell A., 194 Wis. 2d 628, 534 N.W.2d 907 (Ct. App. 1995)
7 Id. at 644.
8 Id. at 644.
9 Id. at 644-645.