PUBLISHED OPINION
Case No.: 95-1164
†Petition for Review Filed
Complete Title
of Case:IN RE THE INTEREST OF JASON P.S.,
A Person Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,†
v.
PATRICIA A.P.,
Respondent-Appellant.
Submitted on Briefs: July
10, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: July
13, 1995
Opinion Filed: July 13, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: La
Crosse
(If "Special" JUDGE: Michael
J. McAlpine
so indicate)
JUDGES: Gartzke,
P.J., Dykman and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-appellant the cause was submitted on the
brief of Judith L. Maves-Klatt of La Crosse.
Respondent
ATTORNEYSFor the petitioner-respondent the cause was submitted on the
brief of William A. Shepherd, Assistant Corporation Counsel, La
Crosse.
Guardian
ad LitemFor Jason P.S. the cause was submitted on the brief of Beverly
A. Fleishman of La Crosse.
COURT OF APPEALS DECISION DATED AND RELEASED July 13, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
95-1164
STATE
OF WISCONSIN IN COURT OF
APPEALS
IN RE THE INTEREST OF JASON P. S.,
A Person Under the Age of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
PATRICIA A. P.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MC ALPINE, Judge. Reversed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
GARTZKE, P.J. Patricia A.P. is the mother of Jason P.S.,
born March 24, 1983. She appeals from
an order terminating her parental rights to her son.[1] The issue is whether, as Patricia contends,
she was deprived of her rights without due process of law contrary to the
Fourteenth Amendment to the United States Constitution. She bases her contention on the differences
between the notice of the grounds for termination she received in the prior
proceedings finding Jason to be a child in need of protection or services
(CHIPS) and the grounds the State employed to terminate her rights. We agree with Patricia's contention. We therefore reverse the order terminating
her rights to her son.[2]
The pertinent statutes
are §§ 48.356 and 48.415, Stats. Because of their importance, we provide the
relevant portions of each.
Section 48.356, Stats., provides:
(1)
Whenever the court orders a child to be placed outside his or her home
because the child has been adjudged to be in need of protection or services
under s. 48.345, 48.357, 48.363 or 48.365, the court shall orally inform the
parent or parents who appear in court of any grounds for termination of
parental rights under s. 48.415 which may be applicable and of the conditions
necessary for the child to be returned to the home.
(2) In addition to the notice required under
sub. (1), any written order which places a child outside the home under sub.
(1) shall notify the parent or parents of the information specified under sub.
(1).
Section 48.415, Stats., 1991-92, before its amendment
in May 1994, provided in relevant part:
At
the fact-finding hearing the court or jury may make a finding that grounds
exist for the termination of parental rights.
Grounds for termination of parental rights shall be one of the
following:
....
(2)
Continuing need of protection or services may be established by a
showing of all of the following:
(a)
That the child has been adjudged to be in need of protection or services
and placed, or continued in a placement, outside his or her home pursuant to
one or more court orders under s. 48.345, 48.357, 48.363 or 48.365 containing
the notice required by s. 48.356(2).
(b)
That the agency responsible for the care of the child and the family has
made a diligent effort to provide the services ordered by the court.
(c) That the child has been outside the home for
a cumulative total period of one year or longer pursuant to such orders, the
parent has substantially neglected, wilfully refused or been unable to meet 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 in the
future.
Section 48.415, Stats., was amended effective May 5,
1994, by 1993 Wis. Act 395, § 25, and provides in relevant part:
At
the fact-finding hearing the court or jury may make a finding that grounds
exist for the termination of parental rights.
Grounds for termination of parental rights shall be one of the
following:
....
(2)
Continuing need of protection or services may be established by a
showing of all of the following:
(a)
That the child has been adjudged to be in need of protection or services
and placed, or continued in a placement, outside his or her home pursuant to
one or more court orders under s. 48.345, 48.357, 48.363 or 48.365 containing
the notice required by s. 48.356(2).
(b)
That the agency responsible for the care of the child and the family has
made a diligent effort to provide the services ordered by the court.
(c) That the child has been outside the home for
a cumulative total period of one year or longer pursuant to such orders or, if
the child had not attained the age of 3 years at the time of the initial order
placing the child outside of the home, that the child has been outside the home
for a cumulative total period of 6 months or longer pursuant to such orders;
and that 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 under
s. 48.424.
Beginning in 1987,
dispositional orders were entered in five CHIPS proceedings relating to
Patricia and her son. Attached to each
of the four most recent orders was a written warning that her parental rights
could be terminated based on the grounds in the then current version of
§ 48.415(2)(c), Stats., each
of which read the same as § 48.415(2)(c), 1991-92, (cited earlier in this
opinion). Each order described those
grounds.[3] The last CHIPS proceeding began in the fall
of 1993.
The last CHIPS
proceeding resulted in a dispositional order dated January 19, 1994, attached
to which was the following:
SPECIAL WARNING FOR PARENTS OF THIS CHILD
The parents are hereby notified that
grounds may exist for the termination of their parental rights to the child if
the child remains outside the home pursuant to this order and any subsequent
orders;
....
B. For
a cumulative total period of one year or longer, if the parents substantially
neglect, willfully refuse, or are unable to meet the conditions established for
the return of the child to the home, if there is a substantial likelihood that
the parents will not meet these conditions in the future, and if the agency
responsible for the care of the child and the family has made a diligent effort
to provide the services ordered by the court.
(Emphasis
added.)
On September 2, 1994,
after the most recent extension had been in effect for less than one year and
after the effective date of the new § 48.415(2)(c), Stats., the La Crosse Department of
Human Services petitioned to terminate Patricia's right to her son. The petition alleged the modified grounds
for termination in the new § 48.415(2)(c).
Before the trial began,
Patricia's counsel moved to dismiss the petition. He argued that to proceed with the petition on grounds other than
those given in the warnings Patricia received would violate her right to due
process. The trial court denied the
motion to dismiss and allowed the County to proceed under the new
§ 48.415(2)(c). Patricia objected
at the instructions conference to the charge to the jury based on the new
statute.
Where, as here, the
facts are undisputed, the application of the United States Constitution to those
facts is a question of law which we decide without deference to the trial
court's ruling. State v. Comstock,
168 Wis.2d 915, 921 n.2, 485 N.W.2d 354, 356 (1992).
Parents have a
fundamental liberty interest in matters of family life. Santosky v. Kramer, 455 U.S.
745, 753 (1982); In re Interest of Philip W., 189 Wis.2d 432,
436, 525 N.W.2d 384, 385 (Ct. App. 1994).
The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not evaporate
simply because they have not been model parents or have lost temporary custody
of their child to the State. Even when
blood relationships are strained, parents retain a vital interest in preventing
the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural protections than do
those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair procedures.
Santosky, 455
U.S. at 753-54 (footnote omitted).
A parent's liberty
interest is protected by the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. Philip,
189 Wis.2d at 436, 525 N.W.2d at 385.
State intervention to terminate the relationship between a parent and a
child must be accomplished by procedures meeting the requisites of the Due
Process Clause. Id. at
436-37, 525 N.W.2d at 385-86. The
State's power to terminate can only be exercised under procedures which assure
that the power is justly exercised. Id.
at 437, 525 N.W.2d at 386.
In an analogous area,
when juvenile authorities allege that a condition of probation has been
violated, fundamental fairness requires that the juvenile has been given some
warning in advance that particular conduct could lead to revocation of
probation. G.G.D. v. State,
97 Wis.2d 1, 9, 292 N.W.2d 853, 857 (1980).
"[T]he liberty of the probationer cannot be forfeited unless fair
warning has been given to him. When
probation is revoked based on a condition not formally given, the record must
be closely examined to determine whether adequate notice was given to
constitute fair warning." Id.
at 10-11, 292 N.W.2d at 857.
Similarly, 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 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.
That is what has happened here.
Before the petition was
filed, Patricia was warned in material part that her rights could be terminated
if she "has substantially neglected, willfully refused or been unable to
meet the conditions established for the return of the child to [her]
home," the ground in the old statute.
But the petition proposed termination because Patricia "failed to
demonstrate substantial progress toward meeting the conditions established for
the return of the child to the home ...," the ground in new
§ 48.415(2)(c), Stats.
The change in the type
of conduct for which termination is risked under the old and new statutes is
not merely a matter of degree. It is a
change in quality of the very nature of the acts leading to termination. The notice to Patricia under the old
§ 48.415, Stats., told her
she faced the loss of her parental rights only for culpable
conduct--substantial neglect or willful refusal--or for inability to meet the
conditions established for the return of the child to her. Inability is not fault based and need not
involve culpable conduct but its proof requires the State to show that for
reasons beyond the parent's control, the conditions have not been met.
The ground for
termination under the new law requires no showing of neglect, willfulness or
inability. Under the new law Patricia
faced loss of her parental rights, in material part, merely because she
"failed to demonstrate substantial progress toward meeting the conditions
established for the return of the child."
The reasons for the lack of substantial progress are irrelevant. Under the old law, the reasons for failure
to meet the conditions established for the return of the child must be
shown. Without a showing of those
reasons, termination could not occur under the old law.
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 has been a lack of substantial progress. Under the old law, the grounds are more
stringent and are partly subjective.
We conclude that because
Patricia was deprived of her parental rights without due process, the order
must be reversed.
By the Court.--Order
reversed.
[1] Originally assigned as a one-judge appeal under § 752.31(2)(e), Stats., this case was reassigned to a three-judge panel by order of the chief judge. See Rule 809.41(3), Stats. We invited the attorney general to participate in the appeal. He declined the invitation. The appeal has been expedited. Rule 809.107(6)(e), Stats.
[2] Rule 809.19(1)(f), Stats., requires that a brief contain "[a] short conclusion stating the precise relief sought." Patricia seeks reversal of the order terminating her parental rights. The State seeks affirmance. Because no middle course is sought and argued, and because we accept Patricia's contention, we reverse the order.