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COURT OF APPEALS DECISION DATED AND FILED April 29, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEALS
from orders of the circuit court for
¶1 NEUBAUER, J.[1] William S.L. and Tanya M.B. appeal from trial court orders terminating their parental rights to their three children, Elijah, Emily, and Irie, on grounds that the children were in continuing need of protection or services under Wis. Stat. § 48.415(2)(a). The parents contend that there was no credible evidence to support the jury’s finding that the Sheboygan County Department of Health and Human Services made reasonable efforts to provide specific court-ordered services as required by Wis. Stat. §§ 48.355(2)(b)1. and 48.415(2)(a)2. Because the CHIPS dispositional orders underlying the termination of parental rights (TPR) petitions failed to set forth any court-ordered services as required by § 48.355(2)(b)1., we conclude that the trial court erred in denying the parents’ motions to change the jury’s special verdict answers and dismiss the TPR petitions on that basis. We reverse the trial court’s orders.
BACKGROUND
¶2 On March 7, 2008, the Department filed petitions for the involuntary termination of the parental rights of both William and Tanya to their three children under Wis. Stat. § 48.415(2)(a). The Department based its petitions on the children’s underlying CHIPS dispositional orders entered on March 25, 2004. The Department’s statements as to the facts and circumstances supporting its petitions for termination cited William’s and Tanya’s failure to meet the conditions set forth in the CHIPS dispositional orders. The dispositional orders, dated March 30, 2004, each set forth numerous conditions to be met for the return of the children; however, the court did not order any services to be provided to the child and family.[2] Neither William nor Tanya ever challenged the dispositional orders.
¶3 The matter proceeded to a five-day jury trial commencing June
24, 2008. All six petitions regarding
William’s and Tanya’s parental rights to their three children were heard
together. The six special verdicts
required the jury to answer, with respect to each parent and each child,
whether the Department had made a reasonable effort to provide the services
ordered by the court.[3] During deliberations, the jury inquired of
the court, “What exactly were the services ordered by the court?” The court replied, “The obligation of the
Department was to provide supervision of the case which implicitly included
assisting the parents to meet the conditions of the return of the
children.” The jury further inquired,
“Are the services ordered by the court contained in the conditions of return?” The court responded, “No.”
¶4 The jury returned all verdicts finding that the Department had met its burden as to the elements underlying grounds for termination, including that the Department had made a reasonable effort to provide the services ordered by the court. William and Tanya each filed postverdict motions requesting the court to (1) dismiss the underlying CHIPS orders, (2) dismiss the TPR petitions, or (3) change the answers to special verdict question 2 to the negative and dismiss the cases. The trial court denied the parents’ motions reasoning that the “defect” in the orders had not been timely raised, and therefore the voidable orders still stand. Considering the CHIPS orders in relation to the jury verdict questions, the court determined that there were no services ordered, “[e]rgo, the department technically was not obligated to provide specific services—though services were provided by the department to aid the parents in meeting the conditions for return of the children set forth in the CHIPS order.” The parents appeal.[4]
DISCUSSION
Standard of Review
¶5 The termination of parental rights affects some of a parent’s
most fundamental human rights and, therefore, termination proceedings require
heightened legal safeguards against erroneous decisions. Evelyn C.R. v. Tykila S., 2001 WI
110, ¶20-21, 246
¶6 The first step of a TPR proceeding, during which the rights
of the parents are paramount, is a fact-finding hearing to determine whether
grounds exist for the termination.
¶7 The challenge in this case involves the fact-finding
hearing. The jury found that the Department
met its burden of proving by clear and convincing evidence that William and
Tanya’s children were in continuing need of protection or services and
therefore grounds for the involuntary termination of William’s and Tanya’s
parental rights existed. See Wis. Stat. § 48.415(2) (setting
forth “continuing need of protection and services” as a grounds for involuntary
termination). The continuing need of
protection and services, under § 48.415, “shall be established by proving”:
(1) that the child has been adjudged to
be a child in need of protection or services and placed, or continued in a
placement, outside his or her home for a cumulative period of six months or
longer pursuant to one or more court orders; (2) that the agency responsible
for the care of the child and the family has made a reasonable effort to
provide the services ordered by the court; (3) that the parent has failed to
meet the conditions established for the safe return of the child to the home;
and (4) that there is a substantial likelihood that the parent will not meet
these conditions within the nine-month period following the fact-finding
hearing. See also
¶8 The parents contend that because the dispositional order
failed to include an order for services, it was impossible for the Department
to meet its burden of proof that it made reasonable efforts to provide those
services. As such, they argue that the jury’s
answers to special verdict question 2 must be changed and the TPR petitions
dismissed. The trial court, however,
determined that if no court- ordered services are specified, then the
Department was not required to prove that any court-ordered services were
provided. Therefore, the issue in this
case centers on whether Wis. Stat. § 48.355(2)(b)1.
mandates written court-ordered services in the dispositional orders as a basis
for proving at a subsequent TPR hearing that the Department made reasonable efforts
to provide the ordered services. This
issue involves the application of a statute to undisputed facts. As such, our standard of review is de novo. See
Gonzalez
v. Teskey, 160
Wisconsin Stat. § 48.355(2) mandates
written court-ordered services in the dispositional order.
¶9
In our opinion, considerations of clarity, definiteness and adherence to basic principles of due process of law lead to the conclusion that “consequences” of a mandatory construction are conducive not only to realization of the aims of particular juvenile court proceedings, but to the integrity of the judicial process itself.
F.T., 150
¶10 Here, it is undisputed that the dispositional orders fail to comply with the statutory mandate. Insofar as there may be cases in which the trial court chooses not to order services, we think it evident that the court must, at a minimum, state that intention. While in this case, the conditions of return ordered by the court required William and Tanya to complete certain treatment and parenting programs, the Department acknowledges that the dispositional orders did not specifically list the services that the Department was required to provide. Moreover, the trial court advised the jury that the court-ordered services were not contained in the conditions of return. In short, no services were ordered to be provided. The involuntary termination of parental rights based on a continuing need of protection and services is premised on a finding that the parent failed to meet the conditions of return and that the court-ordered services necessary to meet those conditions were in fact provided. See Wis. Stat. § 48.415(2)(a). As such, we agree with the parents that the Department is precluded from clearly and convincingly proving that it made a reasonable effort to provide the court-ordered services.
¶11 Without addressing the mandate of Wis. Stat. § 48.355, the Department asks us to ignore
our holding in F.T. as inapposite and outdated. Instead, the State argues, we should examine
the question “of whether the Department was unable to prove … parental
unfitness as a matter of law” through the larger framework of both the
legislative intent of the Children’s Code, and a recognition of what due
process requires of a TPR proceeding. The
Department contends that, regardless of the trial court’s oversight in failing
to specify court-ordered services, the procedures followed in this case
provided due process to both William and Tanya.
However, the Department’s argument ignores that it is the provisions of Wis. Stat. ch. 48 that are intended to
provide the constitutional safeguards necessary in TPR proceedings. Evelyn C.R., 246
¶12 Finally, the Department contends that because William and Tanya
failed to challenge the underlying CHIPS orders, the common-law waiver rule
articulated by the court in Village of Trempealeau v. Mikrut,
2004 WI 79, ¶15, 273 Wis. 2d 76, 681 N.W.2d 190, applies. We reject the Department’s waiver
argument. The parents are not
challenging the validity of the CHIPS orders—in fact, as the Department points
out, they submitted to the terms of the orders repeatedly over a four-year
period. Rather, the parents are
challenging the existence of evidence to support the jury’s answers to special
verdict question 2. We reluctantly agree
with the parents that the evidence simply does not exist.[7] That being the case, we are compelled to
conclude that the trial court erred in affirming the jury’s verdicts. See
Weiss
v. United Fire & Cas. Co., 197
CONCLUSION
¶13 We conclude that the absence of the mandatory written court-ordered specific services in the CHIPS dispositional orders precluded the Department from clearly and convincingly proving that it made a reasonable effort to comply with such orders. As a matter of law, the jury’s answer to special verdict question 2 must be “no.” Because the Department failed to satisfy its burden of proving grounds for the involuntary termination of William’s and Tanya’s parental rights, we reverse the TPR orders as to each parent and each child.
By the Court.—Orders reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)(4).
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] We note that there are six separate dispositional orders and none of them contain court-ordered services or refer to the court report.
[3] The special verdict form and jury instructions, as to each child, provided as follows:
INVOLUNTARY TERMINATION OF PARENTAL RIGHTS: CONTINUING NEED OF PROTECTION OR SERVICES.
The petition in [this case] alleges that [the child] is in continuing need of protection or services which is a ground for termination of parental rights. Your role as jurors will be to answer the following questions in the special verdict.
1. Has [the child] been adjudged to be in need of protection or services and placed outside the home for a cumulative total period of six months or longer pursuant to one or more court orders containing the termination of parental rights notice required by law?
2. Did the Sheboygan County Department of Health and Human Services make a reasonable effort to provide the services ordered by the court?
3. Has [the parent] failed to meet the conditions established for the safe return of [the child] to [the parent’s] home?
4. Is there a substantial likelihood that [the parent] will not meet these conditions within the 12 month period following the conclusion of this hearing?
[4] William’s and Tanya’s appeals were initially filed separately; however, we consolidated the appeals in an order issued on March 18, 2009. See Wis. Stat. Rule 809.10(3).
[5] We
note that the time period for the likelihood of meeting the conditions was
reduced from twelve months to nine months by 2005 Wis. Act 293. See
[6] The
issue in F.T. v. State, 150
[7] We
note that the Department’s brief sets forth a lengthy recitation of the facts
and procedural history in this case. We
agree with the Department that the facts underlying the TPR petitions in this
case are both heartbreaking and compelling.
It is undisputed that the jury’s verdict that the parents failed to meet
the conditions established for the safe return of each child to the parent’s
home was supported by the evidence, and that the Department met its burden to
establish the same by clear and convincing evidence. However, the statute imposes this separate requirement
and we are bound by the language of the statute. See