COURT OF APPEALS
DATED AND FILED
December 8, 2010
A. John Voelker
Acting Clerk of Court of Appeals
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.
IN COURT OF APPEALS
Appeal No. 2010AP52
In re the termination of parental rights to
Tyanna J., a person under the age of 18:
Appeal No. 2010AP53
In re the termination of parental rights to
Taybianna J., a person under the age of 18:
Appeals No. 2010AP136
In re the termination of parental rights to
Tyanna J., a person under the age of 18:
Appeal No. 2010AP137
In re the termination of parental rights to
Taybianna J., a person under the age of 18:
¶1 BRENNAN, J. In
this consolidated appeal, Lorraine J. and Johnny J. challenge the trial court’s
July 9, 2009 orders terminating their parental rights to Tyanna J. and
Taybianna J., and the trial court’s orders denying their post‑termination
¶2 Tyanna was born February 11, 2004, to both
¶4 On May 29, 2005, Taybianna was born to
¶5 In September 2005, the trial court entered a CHIPS
dispositional order for Taybianna and set the same conditions for Taybianna’s
¶6 On September 29, 2005, the State filed a termination of parental rights (“TPR”) petition for Tyanna and her four older siblings, alleging two grounds for termination under Wis. Stat. § 48.415: (1) continuing-CHIPS, pursuant to § 48.415(2); and (2) failure-to-assume-parental-responsibility, pursuant to § 48.415(6).
¶7 In October 2005, the State filed an amended TPR petition, adding Taybianna to the original petition for the four older siblings and Tyanna, but only on the failure-to-assume ground. In February 2006, when Taybianna had been outside the home for the requisite six months, see Wis. Stat. § 48.415(2), the State filed a motion requesting permission to amend the petition a second time to add a continuing-CHIPS ground for Taybianna. The trial court granted the motion.
¶8 In late spring of 2006, things began to improve:
¶10 During the adjourned time period,
¶12 Supervisors reported that
¶14 On August 3, 2007, on the eve of the dispositional hearing,
¶16 After the court’s written TPR orders were entered, the cases were
transferred from the Bureau to Children’s Service Society, an adoption
agency. Accordingly, all Bureau services
¶17 Both Lorraine and Johnny pursued post-termination motions to vacate
their no-contest pleas to the continuing-CHIPS grounds. On April 25, 2008, the trial court granted
their motions and vacated: (1)
¶18 On the next court date, a status hearing, the new judge
presided and both
¶19 At the next court date in July 2008, counsel for Johnny asked
the newly assigned caseworker from the Bureau why the Bureau had not arranged
for visitation. The GAL objected to
visitation. On July 30, 2008, the State
filed an amended TPR petition, for both
¶20 On September 19, 2008, the trial court held a hearing on the
visitation motions. Only Hill, the
children’s therapist, testified. She
testified that she believed that it was not in the children’s best interests to
have contact with
¶21 A jury trial was held on both failure-to-assume-parental-responsibility
and continuing-CHIPS grounds. On May 11,
2009, the jury found against
¶22 Both Lorraine and Johnny raise due process challenges to the
trial court’s final TPR orders, and although they each characterize their due
process claims somewhat differently, they both essentially argue that, by
depriving them of visitation with Tyanna and Taybianna, the State caused them
to be unable to defend against the TPR petition, violating their substantive
and procedural due process rights. Each,
separately, also brings a number of individual claims. We deal first with
I. The Due Process Challenge
¶23 First, Johnny separately claims that his due process rights
were violated when the August 2007 TPR orders were entered and visitation was
terminated. Johnny argues that the
visitation should have continued, pursuant to Wis.
Stat. § 48.368, until his appeal was granted or denied.
¶24 Next, Lorraine and Johnny jointly argue that the State had a due process obligation to immediately allow Lorraine and Johnny to visit with Tyanna and Taybianna when the August 2007 TPR orders were vacated in April 2008, because the trial court returned the case to the same procedural posture it was in at the time Lorraine and Johnny entered their no-contest pleas in August 2006 and in August 2006 visitation was in place.
¶25 Finally, Johnny alone argues his due process rights were violated in September 2008, when the trial court denied his visitation motion because the trial court purportedly applied the wrong law, namely, the best-interest-of-the-child standard. In the alternative, Johnny argues that if the best-interest-of-the-child standard is the applicable standard under Wis. Stat. ch. 48, then ch. 48 deprived him of due process.
¶26 We address each challenge in turn.
A. Standard of Review.
¶27 Whether the challenged State action violates the Fourteenth
Amendment’s due process protections presents a legal question which we review
independently of the trial court. See
¶28 Substantive due process protects against state action that is
“arbitrary, wrong or oppressive” and that either “‘shocks the conscience … or interferes
with rights implicit in the concept of ordered liberty.’” Dane Cnty. DHS v. P.P., 2005 WI 32,
¶29 Procedural due process ensures “the opportunity to be heard ‘at
a meaningful time and in a meaningful manner.’”
Brown Cnty. v. Shannon R., 2005 WI 160, ¶64, 286
¶30 A challenged statute is entitled to a presumption of
constitutionality, P.P., 279
B. Johnny’s due process rights were not violated when visitation was terminated after entry of the August 2007 TPR orders.
¶31 Johnny’s first argument, in which Lorraine does not join, is that his due process rights were violated starting in August 2007, when the trial court entered the first TPR orders and did not permit him to visit Tyanna and Taybianna while he challenged those orders. He asserts that Wis. Stat. § 48.368 required that the visitation portion of the 2004 and 2005 CHIPS dispositional orders remain in effect even after the entry of the August 2007 TPR orders, entitling him to visitation. He bases this argument on the language of § 48.368, which provides: “If a petition for termination of parental rights is filed under … [Wis. Stat. §] 48.415 … the dispositional … order … shall remain in effect until all proceedings related to the filing of the petition or an appeal are concluded.” (Emphasis added.)
¶32 In response, the State and GAL argue that: (1) the entry of the August 2007 TPR orders severed all parental rights, including visitation pursuant to Wis. Stat. § 48.43; and (2) Johnny misreads Wis. Stat. § 46.368, which does not state that the CHIPS dispositional visitation orders continue, but simply preserves the trial court’s jurisdiction. We agree with the State and GAL.
¶33 Johnny’s due process challenge requires that we interpret
portions of the
we begin with the language of the statute and attribute to it the common, ordinary, and accepted meaning. We interpret the language in the context in which it is used and in a way that avoids absurd or unreasonable results. If, using this approach, the statute has a plain meaning, we apply that meaning to the facts.
Dawson v. Town of Jackson,
2010 WI App 24, ¶17, 323
¶34 To begin, Wis. Stat. § 48.368 does not say that visitation continues after a TPR order is entered. By saying that the CHIPS dispositional order continues “in effect” until the TPR appeal is concluded, the statute is clearly designed to continue the court’s jurisdiction over the children to prevent them from being in legal limbo in the event of a TPR reversal.
¶35 And even more importantly, Johnny’s analysis of Wis. Stat. § 48.368—that it
provided him with visitation rights while his post-termination challenge to the
TPR orders was pending—is contrary to Wis.
Stat. § 48.43(2), which clearly and unambiguously states that “[a]n
order terminating parental rights permanently severs all legal rights and duties between the parent whose
parental rights are terminated and the child.”
(Emphasis added.) The statute
plainly states that all rights are severed and does not provide an exception
for visitation. Accordingly, we reject
Johnny’s interpretation of § 48.368 because it renders § 48.43(2)
meaningless, creates a conflict in the statutes, and therefore leads to an
absurd result. See Winnebago Cnty. DSS v. Darrell A., 194
¶36 Other portions of Wis. Stat. ch. 48 also lead us to conclude that Johnny’s interpretation of Wis. Stat. § 48.368 is inaccurate. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (We construe statutes “in the context in which [they are] used; not in isolation but as part of a whole; in relation to the language of surrounding or closely‑related statutes.”). For instance, Wis. Stat. § 48.43(1)(a) requires that a TPR order name the agency that will be securing the child’s adoption. From this it is clear that as soon as a TPR order is entered, a child is transitioned into adoption, consistent with ending all contact with the parent whose rights were terminated.
¶37 Similarly, Wis. Stat. § 48.43(2)(a) and (b) specifically states that the child’s relationships with his or her siblings and relatives whose relationship with the child is derived through the terminated parent are not extinguished by a TPR order but rather by entry of an adoption order. By reverse inference, the terminated parent’s relationship to the child is extinguished once the TPR order is entered. The plain language of § 48.43(2) and its context with the other provisions of Wis. Stat. ch. 48, make it clear that Johnny’s visitation rights were severed upon the entry of the August 2007 TPR orders. And his success in getting those orders vacated is evidence that Johnny was given fundamentally fair procedures to restore his relationship with his children after the entry of the August 2007 TPR orders.
C. Lorraine and Johnny were not denied due process on April 25, 2008, when the trial court failed to immediately reinstate visitation after vacating the August 2007 TPR orders.
¶38 In their shared due process argument, Lorraine and Johnny argue
that on April 25, 2008, when the trial court vacated the August 2007 TPR
orders, fundamental fairness required that the trial court should have immediately reinstated Lorraine’s and
Johnny’s visitation with Tyanna and Taybianna, pursuant to the 2004 and 2005
CHIPS dispositional orders.
THE COURT: … I have now put this case back to where it was at the grounds phase, so whatever the State and the guardian ad litem want to do about visitation, they can address to Judge Pocan on May 27; but right now, there is no order with regard to visitation.
¶39 More specifically,
¶40 With regard to both
¶41 To begin, while Wis. Stat. ch. 48 does not directly address visitation in this unique set of circumstances—namely, after the vacating of a TPR order—ch. 48 does give plenty of guidance. For instance, ch. 48 tells us that the best-interest-of-the-child standard is paramount in all ch. 48 proceedings, see Wis. Stat. § 48.01(1), and that the right of birth parents to visit is not absolute when a child is in State custody, see Wis. Stat. § 48.355(3). Section § 48.355(3) provides that the trial “court may set reasonable rules of parental visitation” after a hearing if the court finds that the best interests of the child would be furthered by visitation. (Emphasis added.) And even after visitation has been granted, Wis. Stat. § 48.42(1m)(c) permits the trial court to revoke visitation if revocation is in the child’s best interest. Thus, we see that the best interest standard controls visitation determinations in both CHIPS and TPR proceedings.
¶42 Here, as a practical matter, on April 25, 2008, the trial court could not determine the best interest of the children. Seven months had gone by since the entry of the August 2007 TPR orders and years had passed since the entry of the CHIPS dispositional orders. In other words, the court could not assume that visitation was still in Tyanna’s and Taybianna’s best interest; circumstances had changed.
¶43 At the time the trial court reversed the August 2007 TPR
orders, Tyanna was four and Taybianna was not quite three. Tyanna had not lived with her parents since
she was seven months old and Taybianna had not lived with her parents since she
was eleven weeks old. The occasional
supervised visits the girls experienced with
2. The 2004 and 2005 CHIPS dispositional orders did not require immediate visitation on April 25, 2008.
¶44 When the trial court failed to immediately reinstate visitation
on April 25, 2008, the 2004 and 2005 CHIPS dispositional orders had been non‑functional
for several months, since the entry of the August 2007 TPR orders. See
Wis. Stat. § 48.43(2)
(severing all parental rights upon entry of the TPR order). The trial court ruled on April 25, 2008, that
the visitation orders within the CHIPS dispositional orders were no longer in
effect, given the events that had transpired in the case. But even if we accept as true
¶45 Tyanna’s CHIPS dispositional order, dated November 22, 2004,
did not require visitation with
¶46 Furthermore, it is undisputed that Lorraine and Johnny were entitled to a timely and meaningful hearing on visitation once the trial court reversed the August 2007 TPR orders. But procedural due process does not require that they be given immediate visitation under the circumstances here.
¶47 To begin,
¶48 Procedural due process requires that both
¶49 We also take note that neither Lorraine nor Johnny petitioned
for visitation until July 31, 2008, several months after the trial court
vacated the August 2007 TPR orders. On
April 25, 2008, it was the GAL who asked about visitation, not counsel for
4. The trial court’s decision not to immediately reinstate visitation was not “arbitrary, wrong or oppressive.”
¶50 On April 25, 2008, when the trial court vacated the August 2007
TPR orders, both the State, and
¶51 Moreover, there were procedural obstacles that prevented the
trial court from immediately ordering visitation. For instance, the trial court recused itself,
preventing it from ruling upon visitation on April 25, 2008, and requiring a
new judge be assigned. And the lawyers
that had successfully represented the parents on appeal had completed their
appellate representation, and new trial level attorneys had to be appointed who
needed time to prepare for a visitation hearing. These real and significant practical problems
necessitated a short delay, in order to ensure that
¶52 For all of the above practical reasons, and given the unique
history of these cases, the trial court’s decision on April 25, 2008, was
reasonable and not “arbitrary, wrong or oppressive.” See P.P., 279
D. Johnny’s due process rights were not violated when the trial court denied Johnny’s motion for visitation on September 19, 2008, because the trial court reasonably concluded that visitation was not in Tyanna’s and Taybianna’s best interest.
¶53 Johnny alone argues that the trial court denied him due process at the September 19, 2008 visitation hearing when it purportedly applied the incorrect legal standard, namely, the best-interest-of-the-child standard. Alternatively, Johnny argues that if the best-interest-of-the-child standard was the standard required by Wis. Stat. ch. 48, then ch. 48 violates his due process rights. Finally, in a last ditch effort to save his claim, he contends that if the best-interest-of-the-child standard was required by statute and does not violate due process, we should judicially change the standard. In response, the State and GAL argue that: (1) ch. 48 required that the best-interest-of-the-child standard be applied at the hearing; and (2) raising the standard is not supported by law. Again, we agree with the State and the GAL.
¶54 First, we note that it has long been established that the
best-interest-of-the-child standard is the paramount consideration under Wis. Stat. ch. 48. See
Wis. Stat. § 48.01(1) (“In
construing this chapter, the best interests of the child … shall always be
of paramount consideration.”); see also
¶55 We will not respond to unsupported, undeveloped arguments. Kruczek v. DWD, 2005 WI App 12, ¶32,
¶56 We reject as well Johnny’s argument that, if Wis. Stat. ch. 48 did require the court
to apply the best-interest-of-the-child standard at the September 19, 2008
visitation hearing, the statute is unconstitutional on its face and as applied
to him. He bases this argument on Julie
A.B., in which the court noted that during the fact-finding hearing on
whether there are grounds for termination “‘the parent’s rights are
paramount.’” See id., 255
¶57 In short, the holding in Julie A.B. did not address the standard
the court must consider when determining whether visitation is
¶58 Johnny next argues that if the trial court properly considered the best-interest-of-the-child standard at the September 19, 2008 hearing we should change the standard to a higher one, namely, the “necessary to prevent endangerment of child” standard. Johnny cites to family law modification-of-custody cases to support his argument.
¶59 Johnny’s argument has no merit.
First, Johnny cites no authority for his proposition that we can require
the trial court to consider a standard other than the one set forth in Wis. Stat. ch. 48 when deciding
visitation motions; accordingly, we need not even address it. See Kruczek, 278
E. Due Process Conclusion.
¶61 Lorraine and Johnny assume that they could have successfully defended against the TPR petitions if they had been permitted visitation with Tyanna and Taybianna on: (1) August 13, 2007, when the first TPR orders were entered; (2) April 25, 2008, after the trial court vacated the August 2007 TPR orders; or (3) September 19, 2008, when the trial court denied their motions for visitation. However, they present no specific evidence of actions on their part that would have demonstrated fitness to parent or rebutted the grounds in the petition. And they ignore the many instances in the record that support the jury’s verdicts that they both failed to assume parental responsibility and failed to comply with the conditions set forth in the CHIPS dispositional orders.
II. Johnny’s individual claims
¶63 Johnny, separately, also argues that: (1) the trial court abused its discretion when it denied his visitation motion, on September 19, 2008; (2) the trial court lost competence or jurisdiction when the State dismissed the failure-to-assume ground on July 31, 2006; (3) his trial counsel provided ineffective representation; and (4) the trial court abused its discretion in giving a jury instruction that the Bureau had no duty to provide services after entry of the August 2007 TPR orders. We reject each claim in turn.
A. The trial court did not abuse its discretion when it denied Johnny’s motion for visitation on September 19, 2008.
¶64 Johnny separately argues that the trial court abused its discretion when it denied Johnny’s motion for visitation at the September 19, 2008 hearing because the record from the hearing fails to support the trial court’s conclusion that visitation was not in the children’s best interest. We review the trial court’s exercise of discretion with deference to the trial court’s findings of fact and credibility determinations. See Wis. Stat. § 805.17(2). We conclude, after review, that the trial court’s factual findings and credibility determinations are not clearly erroneous, are uncontroverted, and support the trial court’s finding that visitation would not be in the best interest of the children.
¶65 The sole witness at the September 19, 2008 hearing, Hill, Tyanna and Taybianna’s therapist, was called by the State. At the time, Hill had been Tyanna’s individual therapist for the preceding two years and Taybianna’s individual therapist for the preceding one year. Hill testified that she began working with the girls after Tyanna began exhibiting stress symptoms. In the beginning, she met weekly with Tyanna and every other week with Taybianna. Later, she met with each of the girls monthly.
¶66 Hill testified that, at that late date, visitation with
¶67 In support of her conclusion, Hill testified that any change in the girls’ lives exacerbated their negative symptoms. And she believed that the likely effect of reinstituting visitation would result in short-term emotional damages and long-term emotional attachment problems for the girls. No party offered any evidence contradicting Hill’s testimony. Accordingly, the trial court’s reliance on her testimony was not an abuse of discretion.
B. The trial court did not lose competence or jurisdiction when the State dismissed the failure-to-assume ground on July 31, 2006.
¶68 Next, Johnny argues that the trial court lost competence to
decide Taybianna’s TPR petition on July 31, 2006, when the State voluntarily
dismissed the failure-to-assume ground before trial. Central to Johnny’s argument is the
assumption that no other ground had been raised to terminate
¶69 Johnny’s argument ignores the clear evidence in the record,
namely, the trial court’s March 16, 2006 ruling accepting the State’s amended
TPR petition, a ruling Johnny did not object to at the time. In other words, the petitions to terminate
C. Johnny’s trial counsel did not provide ineffective assistance.
¶70 Johnny next argues that he received ineffective representation from trial counsel at the jury trial on grounds because his counsel: (1) failed to object to “unsubstantiated evidence” and other hearsay evidence; and (2) failed to object to the trial court’s reliance on the best-interest-of-the-child standard.
¶71 In order to assert an ineffective assistance of counsel claim,
Johnny must demonstrate that: (1) trial
counsel’s performance was deficient; and (2) trial counsel’s deficient
performance prejudiced the defendant. See Strickland v. Washington, 466
¶72 First, Johnny’s argument that counsel erred in not objecting to
unsubstantiated and other hearsay evidence during the jury trial on grounds is
undeveloped. The evidence he refers to
consists of reports made to the Bureau that:
(1) Lorraine and Johnny neglected their other four children, but not
Tyanna and Taybianna; (2) three of the older children had been engaged in
inappropriate touching with each other; (3) Johnny hit one of the older
children with a belt; and (4) one of the older children had a scratch on his
chest. None of these reports involved
Tyanna or Taybianna. However, while
Johnny generally states that the statements were “not relevant,” “hearsay,” and
“unduly prejudicial,” he fails to attempt any explanation of how this prejudiced him. More specifically, he fails to explain how
the testimony affected the jury’s conclusion that grounds existed on which to
terminate his parental rights on both the failure-to-assume and the
continuing-CHIPS grounds. We will not
address undeveloped arguments.
¶73 Second, we have already concluded above that the trial court properly considered the best-interest-of-the-child standard. Consequently, Johnny cannot demonstrate that his counsel was deficient for failing to object to the court’s use of the standard.
D. The trial court did not abuse its discretion when it instructed the jury that the Bureau had no duty to provide services after the August 2007 TPR orders were entered.
¶74 Johnny next argues that the trial court abused its discretion
when it gave a jury instruction to the effect that the Bureau had no duty to
provide services to Lorraine and Johnny after August 2007 when the first TPR
orders were entered, up to April 25, 2008, the date of the trial court’s
reversal of those orders. Johnny argues
that no law supports the instruction, yet he cites no law to support his
proposition that the instruction was incorrect.
Additionally, Johnny does not claim the instruction prejudiced him. Johnny’s argument is undeveloped and
therefore we will not address it. See id.,
III. Moot Issues
¶75 Finally, Johnny alone argues that the evidence was insufficient
to support the jury’s verdict on the failure-to-assume-parental-responsibility ground,
¶76 The jury found two grounds on which to terminate
By the Court.—Orders affirmed.
This opinion will not be published pursuant to Wis. Stat. Rule 809.23(1)(b)4.
 The Honorable Dennis R. Cimpl originally presided over the cases making up this appeal and entered the first termination of parental rights (“TPR”) orders. However, Judge Cimpl later vacated the TPR orders and recused himself. The Honorable William S. Pocan was then assigned to the cases and presided over the subsequent jury trial on grounds and the dispositional hearing, and entered the July 2009 TPR orders from which the parties appeal. The Honorable Karen E. Christenson entered the orders denying the parties’ post-termination motions.
prior order, we consolidated the instant appeals for dispositional but not
briefing purposes. Pursuant to Wis. Stat. Rule 809.107(6)(e)
(2007-08), this court is required to issue a decision resolving TPR appeals
within thirty days after the filing of the reply brief. We may extend that deadline pursuant to Wis. Stat. Rule 809.82(2)(a) (2007-08)
for good cause. See Rhonda R.D. v.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e).
 The TPR petitions for two of the older children alleged a third ground for termination that is irrelevant on appeal.
 Amended TPR orders were entered on September 20, 2007. Because the amendments are irrelevant to the parties’ claims on appeal and because the parties refer to the August 13, 2007 orders as the final TPR orders, we too refer to the August 13, 2007 orders as the final TPR orders throughout this appeal.
Johnny does not specify whether he is attacking the trial court’s denial on
substantive or procedural grounds (or both), it would appear that his challenge
is founded largely upon procedural due process grounds as he cites to Santosky
v. Kramer, 455 U.S. 745 (1982), for the proposition that the State “must
provide the parents with fundamentally fair procedures.”
 We note that the State did file a motion seeking an injunction to prohibit visitation pursuant to Wis. Stat. § 48.42(1m) on July 30, 2008.