Termination of parental rights not warranted where CHIPS order ended
within three months
A party that seeks termination of parental rights based on a CHIPS
order, an order that removes a child in need of protection or services
from a parent’s home, must show the order was in effect for the
full three-month abandonment period.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Jan. 24, 2011
– If court order removes a child in need of protection or services
(CHIPS) from a parent’s home but the order is terminated within
three months, a court may not permanently terminate parental rights
based on abandonment.
Wis. Stat. section 48.415(1)(a)2
allows a court to terminate parental rights if the child “has been
placed, or continued in a placement, outside the parent's home by a
court order” and “the parent has failed to visit or
communicate with the child for a period of 3 months or
A circuit court terminated a mother’s parental rights under
section 48.415(1)(a)2, but in Heather
B. v. Jennifer B., 2010AP2528 (Jan. 20, 2011), the District IV
Wisconsin appeals court reversed, holding that the three-month
abandonment period must fall within the duration of the CHIPS-based
placement of the child outside the parent’s home.
In December 2008, the Douglas County Circuit Court order
Jennifer’s son removed from her home based on a need for
protection and services (CHIPS order) and placed the child with his
father and stepmother. While the order was in effect, a separate family
court proceeding gave the child’s father primary placement. As a
result, the CHIPS order was terminated.
In June 2009, the son’s stepmother, Heather, petitioned the Dane
County Circuit Court to terminate Jennifer’s parental rights under
section 48.415(1)(a)2. The alleged abandonment period began two weeks
before the CHIPS order was terminated.
The circuit court terminated Jennifer’s parental rights under the
abandonment provision, reasoning that notice of possible termination
based on abandonment is the relevant issue and termination of a CHIPS
order does not undo the impact of section 48.415(1)(a)2.
But Jennifer argued, and the appeals court agreed, that section
48.415(1)(a)2 requires the three-month abandonment period to “fall
within the duration of the CHIPS-based placement.”
“[W]hen a CHIPS order has been terminated or allowed to lapse, it
is reasonable to assume the parental situation has changed and the
reason for the shorter abandonment period is no longer present,”
wrote Judge Paul Lundsten. “At this point, the statutory scheme
reverts to the more general six-month abandonment
Thus, the appeals court held that section 48.415(1)(a)2 did not provide
a grounds for termination of parental rights where the CHIPS order did
not remain in effect for the full three-month period of abandonment
The court also noted that the analysis would be the same if the
underlying placement was authorized by section 938.356(2) concerning
written orders placing juveniles outside the home.