Eau Claire County Department of Human Services v. S. E.

E
                                                            

2021 WI 56

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2019AP894


COMPLETE TITLE:        In re the termination of parental rights to
                       T. L. E.-C., a person under the age of 18:

                       Eau Claire County Department of Human Services,
                                 Petitioner-Respondent,
                            v.
                       S. E.,
                                 Respondent-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 

392 Wis. 2d 726

,

946 N.W.2d 155

                              PDC No:

2020 WI App 39

 - Published

OPINION FILED:         June 10, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 25, 2021

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Eau Claire
   JUDGE:              Emily Long

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in Which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. DALLET, J., filed a dissenting opinion in which ANN
WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:



ATTORNEYS:

      For the respondent-appellant-petitioner, there were briefs
filed by Thomas B. Aquino, assistant state public defender. There
was an oral argument by Thomas B. Aquino.


      For the petitioner-respondent, there was a brief filed by
Sharon L.G. McIlquham, assistant corporation counsel. There was an
oral argument by Sharon L.G. McIlquham.
                                                                           

2021 WI 56


                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.   2019AP894
(L.C. No.   2018TP10)

STATE OF WISCONSIN                          :                   IN SUPREME COURT

In re the termination of parental rights to
T.L.E.-C., a person under the age of 18:

Eau Claire County Department of Human Services,                          FILED
            Petitioner-Respondent,
                                                                    JUN 10, 2021
      v.
                                                                        Sheila T. Reiff
                                                                    Clerk of Supreme Court
S.E.,

            Respondent-Appellant-Petitioner.



REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN,
JJ., joined. DALLET, J., filed a dissenting opinion in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined.




      REVIEW of a decision of the Court of Appeals.                   Affirmed.



      ¶1    REBECCA     GRASSL   BRADLEY,       J.       If    a    circuit       court

determines a child is in need of protection or services (CHIPS)

due to a parent's neglect, refusal, or inability (for reasons other

than poverty) to provide necessary care to the extent that the

physical health of the child is seriously endangered, the circuit
court may order the child removed from the parental home.                           Wis.
                                                                      No.   2019AP894



Stat. §§ 48.13, 48.345 (2017-18).1                   Wisconsin law declares that

"instability and impermanence in family relationships are contrary

to the welfare of children" and recognizes "the importance of

eliminating the need for children to wait unreasonable periods of

time for their parents to correct the conditions that prevent their

safe return to the family."           Wis. Stat. § 48.01(1)(a) (emphases

added).    Toward that end, Wisconsin law allows the filing of a

petition to terminate parental rights if the child has remained in

out-of-home    care       for   at   least       six     months.       Wis.     Stat.

§ 48.415(2)(a)3.

     ¶2     Although "the paramount goal" of Chapter 48 of the

Wisconsin Statutes "is to protect children and unborn children,"

the Children's Code also aims "to preserve the unity of the family,

whenever    appropriate,        by   strengthening         family    life     through

assisting parents and the expectant mothers of unborn children,

whenever appropriate, in fulfilling their responsibilities as

parents or expectant mothers."                 Wis. Stat. § 48.01(1)(a).           In

achieving that objective, the statutes task "[t]he courts and
agencies responsible for child welfare, while assuring that a

child's    health   and    safety    are       the    paramount    concerns,"    with

"assist[ing] parents and the expectant mothers of unborn children

in changing any circumstances in the home which might harm the

child or unborn child, which may require the child to be placed

outside the home or which may require the expectant mother to be


     1 Unless otherwise indicated, all references to the Wisconsin
Statutes are to the 2017-18 version.

                                           2
                                                                         No.    2019AP894



taken into custody."          

Id.

     Conditions with which the parent must

comply in order to have her child returned to her care must be set

forth     in        the   CHIPS      dispositional     order.            Wis.      Stat.

§ 48.355(2)(b)7.           Should        these   efforts    fail    to    change     the

circumstances which led to the removal of the child from the

parental home, Wisconsin law requires a petition for termination

of parental rights (TPR) to be filed once the child has been placed

outside of his home for 15 of the most recent 22 months.                            Wis.

Stat.    §§ 48.415(2)(a)3,          48.417(1)(a).          This    mandate     codifies

federal law, specifically the Adoption and Safe Families Act

(ASFA).    Adoption and Safe Families Act of 1997, Pub. L. No. 105-

89, 111 Stat. 2115.2

     ¶3        In     2018,    the       legislature       amended       Wis.      Stat.

§ 48.415(2)(a)3, a portion of the continuing CHIPS ground for the

involuntary         termination     of    parental   rights.         This      statutory

amendment       occurred      during      the    pendency     of    Sophie's      court

proceedings involving her child, Tyler, who was removed from

Sophie's home and adjudged CHIPS in 2016.3                    Sophie's CHIPS case
commenced under the 2016 version of the statute, and two months

after the 2018 statutory amendment, the Eau Claire Department of

Human Services (the Department) filed a petition to terminate

Sophie's parental rights.            The amended version of § 48.415(2)(a)3,


     2 The Adoption and Safe Families Act is codified in non-
contiguous sections in Title 42 of the United States Code.
     3 For ease of reading, we use the pseudonym "Sophie" for S.E.
(the mother) and "Tyler" for T.L.E.-C. (the child).


                                             3
                                                                      No.     2019AP894



among other things, eliminated consideration by the factfinder of

the likelihood the parent would meet the conditions for return of

the child to the parent's home if the child had already been placed

outside the parent's home for at least "15 of the most recent 22

months."4    Sophie challenged the applicability of the amended

version of § 48.415(2)(a)3 during her TPR proceedings. The circuit

court decided the new version applied.5                   The court of appeals

agreed with the circuit court.6

     ¶4     Sophie raises two issues:            (1) whether as a matter of

statutory construction, the "15 out of 22 months" timeframe began

to run only after Sophie received written notice of the amended

version of Wis. Stat. § 48.415(2)(a)3 (2017-18); and (2) whether

starting the "15 out of 22 months" timeframe in 2016 when Sophie

received the initial CHIPS order with written notice referencing

the prior version of § 48.415(2)(a)3 (2015-16) violates her due

process rights.

     ¶5     We hold:        (1) the "15 out of 22 months" timeframe, as

codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a)3
(2017-18),   began     to    run   when    Sophie      received     written    notice

accompanying the initial 2016 CHIPS order; and (2) starting the

"15 out of 22 months" timeframe in 2016 does not violate Sophie's


     4 For brevity, we refer to the amended language in Wis. Stat.
§ 48.415(2)(a)3 (2017-18) as the "15 out of 22 months" timeframe.
     5 The Honorable Judge Emily M. Long, Eau Claire County Circuit
Court, presided.
     6 Eau Claire Cnty. DHS               v.   S.E.,    

2020 WI App 39

,    

392
Wis. 2d 726

, 

946 N.W.2d 155

.

                                          4
                                                                No.     2019AP894



due process rights.           Accordingly, we affirm the decision of the

court of appeals.

                                 I.   BACKGROUND

       ¶6     In May 2016, the Department received a report of a three-

year-old child, Tyler, wandering unattended on a campground with

a full diaper.        Tyler's mother, Sophie, was on a probation hold at

the time       for methamphetamine possession.           In June      2016, the

Department removed Tyler from Sophie's care and placed him in a

foster home.      When the Department conducted a drug test on Tyler,

he tested positive for methamphetamine.             Tyler's foster parents

observed that he showed significant signs of neglect.                 In August

2016, the circuit court found Tyler to be a child in need of

protection or services.

       ¶7     Under    that   initial   CHIPS   order,   the   circuit    court

provided Sophie with written notice of the potential grounds for

termination of Sophie's parental rights to Tyler, as required by

Wis. Stat. § 48.356(2). Both parties agree that the written notice

identified continuing CHIPS as a possible ground for termination.7
The notice referenced the three sub-parts of continuing CHIPS that

existed in the 2016 version of Wis. Stat. § 48.415(2)(a) (2015-

16).       At that time, the third sub-part provided that, in order to



       The appellate record does not include the initial CHIPS
       7

order from August 2016. Nonetheless, both parties agree that the
order contained written notice of the TPR warnings as required by
Wis. Stat. § 48.356(2). The parties further agree that the notice
listed "continuing CHIPS" among potential grounds for termination
of parental rights and referenced the prior version of Wis. Stat.
§ 48.415(2)(a)3 (2015-16).

                                        5
                                                              No.   2019AP894



terminate parental rights under the continuing CHIPS ground for

termination of parental rights, the factfinder at a TPR trial would

need to determine that there was a "substantial likelihood" the

parent would not meet the conditions established for the safe

return of the child to the home within the nine-month period

following the date of trial.         § 48.415(2)(a)3 (2015-16).      At the

initial hearing and at four subsequent court hearings, the circuit

court gave Sophie written and oral notice that her parental rights

could be terminated due to continuing CHIPS.

     ¶8    During the two years following Sophie's initial CHIPS

order, Sophie continued her drug use and was arrested on numerous

occasions for drug possession.        She also absconded from probation

and refused to participate in the court-ordered services offered

by the Department that would have aided Sophie in meeting the

conditions   for   reunification      with   Tyler.   According     to   the

Department, Sophie has not seen Tyler in person since October 2016.

     ¶9    In April 2018, the legislature amended the third sub-

part of the continuing CHIPS statute.        See 2017 Wis. Act 256, § 1;
Wis. Stat. § 48.415(2)(a)3 (2017-18).         The amended version, among

other things, eliminated any prospective consideration of the

likelihood the parent would meet the conditions for the safe return

of the child to the home if the child had already been placed

outside the parent's home for at least "15 of the most recent 22

months."

     ¶10   In   June   2018,   the   Department   filed   a   petition    to

terminate Sophie's parental rights to Tyler.          The petition cited
abandonment as the ground for termination.        In September 2018, the
                                      6
                                                      No.   2019AP894



Department amended its petition to add continuing CHIPS as a ground

for termination.   During the pendency of Sophie's TPR proceedings,

in October 2018 the circuit court entered another CHIPS order;

this time, when the circuit court identified continuing CHIPS as

a potential ground for termination of Sophie's parental rights to

Tyler, the written notice referenced the amended version of Wis.

Stat. § 48.415(2)(a)3 (2017-18).8

     ¶11   In April 2019, prior to a trial in the grounds phase of

Sophie's TPR proceedings,9 the parties disputed whether the 2016

version or the 2018 amended version of Wis. Stat. § 48.415(2)(a)3

should apply to Sophie's case.    While Sophie contended the prior

version applied, the Department and Tyler's guardian ad litem


     8 The appellate record does not contain the October 2018 CHIPS
order. However, the parties agree that the order contained TPR
warnings as required by Wis. Stat. § 48.356(2).        The parties
further agree that the order identified continuing CHIPS as a
potential ground for termination and referenced the amended
version of Wis. Stat. § 48.415(2)(a)3 (2017-18).
     9 As   background,   "[t]ermination    of   parental   rights
proceedings involve a two-step process." Tammy W-G v. Jacob T.,

2011 WI 30

, ¶18, 

333 Wis. 2d 273

, 

797 N.W.2d 854

. The first step
involves a factfinding hearing. 

Id.

 "The purpose of the fact-
finding hearing is to determine . . . whether grounds exist for
the termination of parental rights" in contested cases. Wis. Stat.
§ 48.424(1).   "The focus of this step is whether the § 48.415
ground has been met, not the child's best interest." Tammy W-G,

333 Wis. 2d 273

, ¶18.

     "The second-step, the dispositional hearing, occurs only
after the factfinder finds a Wis. Stat. § 48.415 ground has been
proved and the [circuit] court has made a finding of unfitness."

Id., ¶19

 (citation omitted). "In this step, the best interest of
the child is the 'prevailing factor.' If the [circuit] court finds
a termination of parental rights is in the child's best interest,
termination should be ordered." 

Id.

 (citations omitted).

                                 7
                                                         No.    2019AP894



asserted the 2018 amended version applied.          In May 2019, the

circuit court ruled that the amended version applied, noting:

     [Sophie] had the current warnings, the warnings that
     would be for the current law on multiple occasions with
     significant time to adjust to those warnings, that this
     has been going on for quite some time with those new
     updated warnings being given.

     Given the purpose of the statute, given the stated,
     intended, desired outcome – that is permanence of the
     child – I am going to find that the new law will apply
     in this case.
The circuit court also concluded that the "15 out of 22 months"

timeframe began to run in 2016 when Sophie received the initial

CHIPS order and written notice.

     ¶12   The circuit court adjourned the TPR trial to allow Sophie

to appeal the non-final order to the court of appeals.         The court

of appeals granted Sophie's petition for interlocutory appeal and

affirmed the circuit court's ruling.   We granted Sophie's petition

for review.

                      II.   STANDARD OF REVIEW

     ¶13   Sophie first contends that, as a matter of statutory

construction, the "15 out of 22 months" timeframe began to run
only after Sophie received written notice of the amended version

of Wis. Stat. § 48.415(2)(a) (2017-18).          Resolving this issue

requires us to interpret Wisconsin's statutes.     The interpretation

and application of statutes present questions of law that we review

independently, benefitting from the analyses of the circuit court

and court of appeals.   State v. Stephenson, 

2020 WI 92

, ¶18, 394




                                  8
                                                             No.   2019AP894



Wis. 2d 703, 

951 N.W.2d 819

 (internal quotations and citations

omitted).

      ¶14    Sophie also argues that starting the "15 out of 22

months" timeframe in 2016 when Sophie received the initial CHIPS

order and written notice referencing the prior version of Wis.

Stat. § 48.415(2)(a) (2015-16) violates her due process rights.

Whether a statute or its application violates an individual's

constitutional rights is a question of law this court also reviews

independently, benefitting from the analyses of the circuit court

and court of appeals.       See State v. Smith, 

2010 WI 16

, ¶8, 

323

Wis. 2d 377

, 

780 N.W.2d 90

; Dane Cnty. DHS v. J.R., 

2020 WI App 5

,

¶51, 

390 Wis. 2d 326

, 

938 N.W.2d 614

.

                            III.   DISCUSSION

                A.   CHIPS Orders and Relevant Statutes

      ¶15    We begin with an overview      of CHIPS orders and the

relevant statutes governing them.         As a general matter, when a

child is adjudicated CHIPS and removed from the parental home, the

Wisconsin Statutes require the circuit court to orally inform the
parent of any grounds for termination of parental rights which may

be applicable to the parent, and to provide this information in a

written CHIPS order as well.       Specifically, Wis. Stat. § 48.356

contains two provisions:      "subsection (1) sets forth the required

oral warnings and subsection (2) sets forth the required written

warnings."     St. Croix Cnty. DHS v. Michael D., 

2016 WI 35

, ¶16,

368 Wis. 2d 170

,    

880 N.W.2d 107

.     "Only    subsection    (2)    is

referenced in the TPR based on continuing CHIPS statute."                Id.;
see   Wis.   Stat.   § 48.415(2)(a)1    (mandating    that   orders      must
                                    9
                                                             No.   2019AP894



"contain[] the notice required by s. 48.356(2)").             In relevant

part, Wis. Stat. § 48.356 reads:

     (1)    Whenever the court orders a child to be placed
            outside his or her home, . . . 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 . . . shall notify
            the parent or parents . . . of the information
            specified under sub. (1).
(Emphases added.)

     ¶16    The CHIPS dispositional order shall also list conditions

the parent must meet in order for the child to be returned to the

parental home.      Wis. Stat. § 48.356(2).10         Additionally, the

standard form order contains a "Notice Concerning Grounds to

Terminate   Parental    Rights"   listing   12   potential   grounds    for

termination of parental rights, which correspond to the "grounds

for involuntary termination of parental rights" enumerated in Wis.
Stat. § 48.415.11      The form order details the evidence necessary



     10A current version of the standard form dispositional order
can be accessed at the following link: https://www.wicourts.gov/
formdisplay/JC-1611T.pdf?formNumber=JC-1611T&formType=Form&forma
tId=2&language=en.
     11 Technically, the standard form dispositional order lists
13 separate grounds for termination of parental rights because the
form identifies "continuing CHIPS of an unborn child" as a separate
ground. Wisconsin Stat. § 48.415 embeds continuing CHIPS of an
unborn child within the continuing CHIPS ground for involuntary
termination of parental rights, as one of 12 statutory grounds.

                                   10
                                                                     No.    2019AP894



to establish each ground for termination.                     Boxes precede each

ground, and if different circumstances may establish a particular

ground, boxes precede each array of evidence that is independently

sufficient to prove that ground.                The form contemplates that the

circuit court will place a checkmark next to those grounds which

"may be most applicable to [the parent]."                  The circuit court must

provide     the   parent   with     a    copy   of   the   order,   including     TPR

warnings.     Wis. Stat. §§ 48.355(2)(d), 48.356(2).

      ¶17    The ground for termination of parental rights at issue

in this case is continuing CHIPS, as set forth in Wis. Stat.

§ 48.415(2)(a).12      In the grounds phase of a TPR proceeding based

on   continuing      CHIPS,   the       factfinder   must    determine     that   the

following three sub-parts of the continuing CHIPS ground have been

proven:

           1. [The] child has been adjudged to be a child or an
           unborn child 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, 48.347, 48.357, 48.363, 48.365, 938.345,
           938.357, 938.363 or 938.365 containing the notice
           required by s. 48.356(2) or 938.356(2).

           . . . .

           2.b. [The] agency responsible for the care of the
           child and the family or of the unborn child and
           expectant mother has made a reasonable effort to
           provide the services ordered by the court.

           3. [The] child has been placed outside the home for a
           cumulative total period of 6 months or longer pursuant
           to an order listed under subd. 1., not including time

       Continuing CHIPS may also be established under Wis. Stat.
      12

§ 48.415(2)(am), which is not at issue in this case.

                                           11
                                                           No.     2019AP894


         spent outside the home as an unborn child; . . . the
         parent has failed to meet the conditions established
         for the safe return of the child to the home; and, if
         the child has been 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, not including any period during
         which the child was a runaway from the out-of-home
         placement or was residing in a trial reunification
         home.
§ 48.415(2)(a) (2017-18) (emphases added).

     ¶18   Previously, the third sub-part read:

     [The] child has been outside the home for a cumulative
     total period of 6 months or longer pursuant to such
     orders not including time spent outside the home as an
     unborn child; and . . . the parent has failed to meet
     the conditions established for the safe return of the
     child to the home and there is a substantial likelihood
     that the parent will not meet these conditions within
     the 9-month period following the fact-finding hearing
     under s. 48.424.
Wis. Stat. § 48.415(2)(a)3 (2015-16) (emphasis added).           This prior

version of the statute required the factfinder to look forward

nine months from the date of the TPR factfinding hearing to

determine whether the parent had a "substantial likelihood" of

meeting the conditions established for the safe return of her

child.   Regardless of how much time the child had spent outside of

the parent's home, the factfinder would look forward nine months

from the date of the hearing——even if years had passed without the

parent satisfying the court-ordered conditions for the safe return

of the child to the parental home.

     ¶19   In April 2018, the legislature amended this language,
reconfiguring   the   timeframe   within   which   the   factfinder     may


                                  12
                                                       No.   2019AP894



consider the likelihood of the parent meeting the court-ordered

conditions.   See 2017 Wis. Act 256, § 1.   The legislature replaced

the forward-looking nine-month period with a "15 of the most recent

22 months" timeframe.    Only if the child has been placed outside

the home for less than 15 of the most recent 22 months may the

factfinder consider whether there "is a substantial likelihood

that the parent will not meet [the] 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 the child has been placed outside

the home for more than 15 of the most recent 22 months, the third

subpart is satisfied by evidence proving that the parent failed to

meet the conditions established for the safe return of the child.

Through this statutory amendment, the legislature eliminated the

petitioner's obligation to show a substantial likelihood that the

parent will not meet the conditions of return within the nine

months following the factfinding hearing if the child has been in

out-of-home care for more than 15 months.     This amendment aligns

with Wis. Stat. § 48.417(1)(a), which requires entities like the
Department to file a TPR action for any child who "has been placed

outside of his or her home . . . for 15 of the most recent 22

months."

                    B.   Statutory Construction

     ¶20   Sophie's CHIPS case straddled this amendment to the TPR

statute, although her TPR case was filed after the amendment.

Sophie argues that the "15 out of 22 months" timeframe began to

run only after Sophie received written notice of the amended
version of Wis. Stat. § 48.415(2)(a)3 (2017-18).    We disagree.
                                 13
                                                                 No.    2019AP894



     ¶21       Wisconsin Stat. §§ 48.356(1) and (2) require circuit

courts     to    provide   parents     with    oral    and    written    notice,

respectively, of any "grounds for termination of parental rights

under s. 48.415 which may be applicable."                    (Emphasis added.)

Proving continuing CHIPS at a TPR trial requires establishing the

parent received such notice; the first sub-part of Wis. Stat.

§ 48.415(2)(a) requires proof that the "child has been adjudged to

be a child or an unborn child 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 . . . containing the notice

required by § 48.356(2)."        § 48.415(2)(a)1 (emphasis added).

     ¶22       Contrary to the court of appeals' rationale in this case,

providing notice to the parent of potential grounds for TPR means

more than just reciting "abandonment" or "continuing need of

protection or services" or any of the other 10 grounds for TPR.

Without more explanation, the parent would be left guessing what

a particular ground means or how the petitioner could prove it.                A

ground for TPR necessarily encompasses the sub-parts comprising
that ground.       See Ground, Black's Law Dictionary (11th ed. 2019)

("[t]he reason or point that something (as a legal claim or

argument) relies on for validity.").            Indeed, a notification that

parental rights can be terminated for continuing CHIPS conveys

little    in    the   absence   of   the    three   sub-parts   that    comprise

continuing CHIPS.       Without the three sub-parts, parents would have

no understanding of the reasons they may lose their parental

rights.


                                       14
                                                                        No.    2019AP894



     ¶23     In Chapter 48, the legislature expressed one of the

purposes of the Children's Code as "assisting parents . . . in

fulfilling        their    responsibilities       as    parents."        Wis.    Stat.

§ 48.01(1)(a).        Most reasonably, assisting parents in fulfilling

the conditions for the safe return of their children requires

providing them with notice of the particular circumstances under

which a CHIPS adjudication may result in the termination of their

parental rights.           See State ex rel. Kalal v. Cir. Ct. for Dane

Cnty., 

2004 WI 58

, ¶¶48-49, 

271 Wis. 2d 633

, 

681 N.W.2d 110

 ("Some

statutes contain explicit statements of legislative purpose,"

which       are      "perfectly           relevant      to     a      plain-meaning

interpretation[.]").           In order to fulfill this purpose of the

Children's     Code,       circuit    courts     must   apprise     parents     of   the

circumstances that may trigger a termination of parental rights.

The standard form dispositional order reflects this.13

     ¶24     While notification "of any grounds for termination of

parental rights"          necessarily includes the            statutory       sub-parts

comprising each ground, circuit courts must provide notice of only
those grounds which "may be applicable" at the time the order is

entered.     Wis. Stat. § 48.356(1) (emphasis added).                This phrase is

dispositive of Sophie's case.              The phrase "may be" in this context

most reasonably means "to be a possibility."                       May, Black's Law

Dictionary (11th ed. 2019).               At the time a circuit court places a

child     outside    the    home     or   continues     the   child's    out-of-home

placement, the circuit court must give the parent notice of the

     13   See footnote 10 

supra.

15

                                                               No.     2019AP894



grounds that may form the basis for a future TPR hearing——at the

particular time the notice is given.             See, e.g., Dane Cnty. v.

Kelly M., 

2011 WI App 69

, ¶24, 

333 Wis. 2d 719

, 

798 N.W.2d 697

("[T]he common meaning of 'may be provided' . . . does not mean

'is being provided' but instead means something that might happen

in the future.") (emphasis added).            Of course, the circuit court

cannot foresee all grounds that may be asserted in a TPR petition

in the future.        For example, the parent of a child adjudicated

CHIPS may later abandon the child within the meaning of Wis. Stat.

§ 48.415(1)(a)2 by failing to visit or communicate with the child

for three months or longer after the child was placed outside the

home by court order, as the Department alleges Sophie has done.

The parent would not have received an explicit warning that her

parental rights could be terminated under that ground but that

does not mean abandonment could not form the basis for a TPR

proceeding against her.

      ¶25    Indeed, the statute does not say that circuit courts

must provide notice of grounds which will be applicable; this would
assign the circuit courts an impossible task. When a circuit court

removes a child from the parental home or continues a child's out-

of-home placement, the legislature requires the circuit court to

provide notice of TPR grounds that may be applicable in the future,

and   such   notice   is   a   prerequisite    to   the   initiation   of   TPR

proceedings.    "We are not at liberty to disregard the plain words

of the statute and we will not attempt to improve the statute by

adding words not chosen by the legislature."                Michael D., 

368
Wis. 2d 170

, ¶17.
                                      16
                                                                       No.     2019AP894



       ¶26    Sophie     argues    that   in   order    for   the     Department     to

initiate      TPR    proceedings     against     her    based    on    the     amended

continuing CHIPS grounds, she would first need to receive TPR

warnings,      in    her   CHIPS    proceedings,       reflecting      the     amended

statutory grounds. We disagree. In August 2016, after the circuit

court found Tyler to be a child in need of protection or services,

Sophie received written notice that she could lose her parental

rights.      The notice identified both the TPR ground "which may be

applicable" to Sophie——continuing CHIPS——and its three applicable

sub-parts.          Sophie's initial CHIPS order referenced the prior

version of Wis. Stat. § 48.415(2)(a)3 (2015-16), because that was

the version in effect at the time the circuit court gave Sophie

the TPR warnings. The CHIPS statute, Wis. Stat. § 48.356, requires

only that Sophie receive notice of those TPR grounds "which may be

applicable" to her and that is, in fact, the notice she received.

Accordingly, the first sub-part of the continuing CHIPS ground for

terminating Sophie's parental rights was satisfied because the

CHIPS orders "contain[ed] the notice required by s. 48.356(2)" as
mandated by § 48.415(2)(a)1.

       ¶27    It is of no import that the legislature amended the third

sub-part of continuing CHIPS in 2018 because there is no dispute

that each time Sophie received TPR warnings, the circuit court

orders       contained     the     requisite     notice       under     Wis.     Stat.

§ 48.356(2)——namely,         any    grounds    for     termination     of    parental

rights "which may be applicable" to Sophie at the time the warnings

were     given.         Moreover,     the      statutorily-required          warnings
contemplate that different grounds may form the basis for a TPR
                                          17
                                                                          No.    2019AP894



action and the parent is forewarned of this.                           Sophie's notice

needed to identify only the grounds for termination that existed

at the time of the initial CHIPS order.                    Sophie's notice did just

that:     it included all three sub-parts of continuing CHIPS in

effect in 2016——the grounds for termination of her parental rights

"which    may     be    applicable"   in   a    future      TPR   proceeding.          The

dispositional          order   underscores      the    potential        for     different

grounds supporting a future TPR proceeding by cautioning the parent

to "be aware that if any of the other[] [grounds] exist now or in

the   future,      your    parental    rights        can    be    taken    from    you."

Accordingly, Sophie was put on notice that different grounds could

support a TPR action against her.

      ¶28    This application of Wis. Stat. § 48.356 fully comports

with our precedent explaining the textual purpose of providing

parents with such notice.             As this court stated in Stephen H.,

"[t]he notice required by Wis. Stat. §§ 48.356(2) and 48.415(2) is

meant to ensure that a parent has adequate notice of the conditions

with which the parents must comply for a child to be returned to
the home.       The notice is also meant to forewarn parents that their

parental rights are in jeopardy."                Waukesha Cnty. v. Steven H.,

2000 WI 28

, ¶37, 

233 Wis. 2d 344

, 

607 N.W.2d 607

 (modified on other

grounds by Michael D., 

368 Wis. 2d 170

). Sophie's notices complied

with all statutory mandates, explained the conditions for the safe

return of Tyler to her home, and forewarned Sophie that her

parental rights were in jeopardy.                    The circuit court properly

applied     the    statutory     language       in    effect      at    the     time   TPR
proceedings commenced.           Because Tyler had been placed outside of
                                           18
                                                              No.     2019AP894



Sophie's home for more than "15 of the most recent 22 months" at

the time the TPR petition was filed, the Department was not

required to establish a substantial likelihood that Sophie would

not in the future meet the conditions established for the safe

return of Tyler to her home.    At that point, Tyler had been placed

outside of Sophie's home beyond the period of time that both

Wisconsin law (and federal law) require the state to achieve

permanency for him.

     ¶29    The textually-expressed purposes of the Children's Code

support our conclusion.    In Wis. Stat. § 48.01(1) the legislature

commands that the interests of the child shall be "paramount" in

interpreting the Children's Code:         "In construing [Chapter 48],

the best interests of the child or unborn child shall always be of

paramount    consideration.     This      chapter   shall     be    liberally

construed    to   effectuate   the    following     express        legislative

purposes:

     (a)    The courts and agencies responsible for child
            welfare should also recognize that instability and
            impermanence in family relationships are contrary
            to the welfare of children and should therefore
            recognize the importance of eliminating the need
            for children to wait unreasonable periods of time
            for their parents to correct the conditions that
            prevent their safe return to the family.

            . . . .

     (gr) To allow for the termination of parental rights at
          the earliest possible time after rehabilitation and
          reunification    efforts   are    discontinued   in
          accordance with this chapter and termination of
          parental rights is in the best interest of the
          child."


                                     19
                                                                  No.        2019AP894



(Emphases added.)          Tyler has been out of Sophie's care for nearly

five years.         During that period of time, Sophie has remained

apprised of the conditions she must meet in order to have Tyler

returned to her home, which the circuit court communicated to her

beginning in August 2016.           She has failed to satisfy them, despite

being on notice that her parental rights could be terminated as

early as six months after Tyler's out-of-home placement.                      Nearly

three       years   have   passed   since     Sophie   received   TPR    warnings

reflecting the amended continuing CHIPS ground.                   Wisconsin law

requires the Department to file a TPR petition if a child like

Tyler has been placed outside of the parental home for 15 of the

most recent 22 months.         Wis. Stat. § 48.417(1)(a).

     ¶30       Accepting     Sophie's    argument      would   require        us   to

disregard the fact that Tyler's out-of-home placement extended

well beyond 15 of the most recent 22 months preceding the filing

of the TPR petition.           Wisconsin Statutes preclude us from doing

so.        Under Wisconsin law, such instability and impermanence is

contrary to Tyler's welfare.            Wis. Stat. § 48.01(1).           For this
reason, both Wisconsin law as well as federal law require the

commencement of TPR proceedings once a child has spent 15 months

in    out-of-home      care.     Wis.   Stat.    § 48.417(1)(a);        42    U.S.C.

§ 675(5)(E).        Sophie's interpretation of the statutes would defeat

the permanence mandate for children like Tyler who have spent more

than 15 months outside the parental home.              This is contrary to the

harmonious-reading canon, which instructs that "[t]he provisions

of a text should be interpreted in a way that renders them
compatible, not contradictory."             Antonin Scalia & Bryan A. Garner,
                                         20
                                                                 No.     2019AP894



Reading Law:      The Interpretation of Legal Texts 180 (2012); State

v.    Hemp,    

2014 WI 129

,   ¶29,   

359 Wis. 2d 320

,    

856 N.W.2d 811

(applying the harmonious-reading canon).             The statutory provisions

we construe exist in harmony.             Sophie received the statutorily-

required notice of a potential TPR both before and after the 2018

amendment.       Her desire for even more than the nearly five years

she has had to meet the conditions for the return of Tyler to her

care is simply not compatible with the statutory mandate to achieve

permanence for her son.

                                  C.   Due Process

       ¶31     Sophie next argues that starting the "15 out of 22

months" timeframe in 2016 when Sophie received the initial CHIPS

order and written notice referencing the prior version of Wis.

Stat. § 48.415(2)(a)3 (2015-16) violates her due process rights.

Sophie contends that starting the "15 out of 22 month" timeframe

based on a CHIPS order pre-dating the legislature's amendment to

the    third    sub-part    of    continuing   CHIPS   would   constitute      an

impermissible retroactive application of § 48.415(2)(a) (2017-
18).14      Additionally, Sophie maintains that applying the amended

        Although Sophie raises retroactivity as part of her
       14

statutory construction argument, retroactivity is better suited
for a due process analysis.          At least in part, "[t]he
antiretroactivity principle finds expression [in the Due Process
Clause]." Landgraf v. USI Film Prod., 

511 U.S. 244

, 266 (1994).
As the United States Supreme Court has noted, "[t]he Due Process
Clause . . . protects the interests in fair notice and repose that
may be compromised by retroactive legislation." 

Id.

 Accordingly,
we address Sophie's retroactivity argument as part of her due
process claim. See Dane Cnty. DHS v. J.R., 

2020 WI App 5

, ¶28,

390 Wis. 2d 326

, 

938 N.W.2d 614

 (addressing a retroactivity
argument as part of the petitioner's due process claim).

                                         21
                                                                       No.    2019AP894



version of § 48.415(2)(a) (2017-18) would deprive her of her

constitutionally protected right to parent her child, without

"fair notice."      We disagree with Sophie on both arguments.

                       1.     Retroactive Application

       ¶32   "As a general rule, legislation is presumed to apply

prospectively unless the statutory language reveals, by express

language     or   necessary     implication,       an     intent   that      it     apply

retroactively."        Schulz    v.    Ystad,      

155 Wis. 2d 574

,       597,     

456

N.W.2d 312

 (1990) (citation omitted).               This presumption is rooted

in the "[s]trong common-law tradition" that "the legislature's

primary function [is] declaring law to regulate future behavior."

Id.

    However, as the United States Supreme Court has held, "[a]

statute does not operate 'retrospectively' merely because it is

applied in a case arising from conduct antedating the statute's

enactment or upsets expectations based in prior law."                   Landgraf v.

USI Film Prod., 

511 U.S. 244

, 269 (1994).                 "Rather, the court must

ask whether the new provision attaches new legal consequences to

events completed before its enactment."                  

Id. at 269-70

.
       ¶33   In accordance with the United States Supreme Court's

instruction, we apply a two-step analysis to determine whether

applying the amended version of a statute constitutes a retroactive

application.       Matthies v. Positive Safety Mfg. Co., 

2001 WI 82

,

¶¶16, 19, 

244 Wis. 2d 720

, 

628 N.W.2d 842

; J.R., 

390 Wis. 2d 326

,

¶30.    "In the first step, we look to whether the legislature has

expressly     noted    its     intent       that    the     statute     be        applied

retroactively."       J.R., 

390 Wis. 2d 326

, ¶31.            In the second step,
we     determine      "whether        the     amended        version         of      [the
                                        22
                                                                  No.      2019AP894



statute] . . . has a retroactive effect when applied."                  

Id., ¶32

.

In this case, our analysis of both steps shows that Wis. Stat.

§ 48.415(2)(a) (2017-18) is not being applied retroactively to

Sophie.

     ¶34    First, as Wisconsin courts have already stated, "the

legislature did not express its intent that the amended version of

Wis. Stat. § 48.415(2)(a) be applied retroactively."                    

Id., ¶31

.

Nowhere in the legislature's amendment to the third sub-part——or

anywhere else in § 48.415 for that matter——did it explicitly signal

that the statute applies retroactively.

     ¶35    Second,   application    of   the     amended      statute      has   no

retroactive effect as applied to Sophie's case.                  Sophie argues

that applying the amended version of Wis. Stat. § 48.415(2)(a)

(2017-18) has "retroactive effect" because it "attaches new legal

consequences    to    events    completed       before    its        enactment."15

Landgraf, 

511 U.S. at 269-70

.       While it is true that a statute may

have retroactive effect if it "creates a new obligation" or

"imposes a new duty" with respect to past conduct, application of
§ 48.415(2)(a)3 (2017-18) to Sophie's case does neither.                   State v.

Chrysler Outboard Corp., 

219 Wis. 2d 130

, 172, 

580 N.W.2d 203

(1998)    (quoted   source   omitted).      The   "15    out    of    22   months"

timeframe did not create any new legal obligation or consequence.

Regardless of the legislature's amendment, Sophie remained subject

     15 Unlike her argument before the court of appeals, Sophie
makes clear that she is not asserting a "vested rights" theory of
retroactivity. See Lands' End, Inc. v. City of Dodgeville, 

2016
WI 64

, ¶65 n.30, 

370 Wis. 2d 500

, 

881 N.W.2d 702

. Accordingly, we
need not address that argument.

                                    23
                                                                       No.        2019AP894



to the exact same conditions in 2018 as she was in 2016.                          Nothing

in the amended statute changed the conditions established for the

safe return of Tyler to her care.               The amendment itself did not

create   or    alter    any   legal   consequence          affecting      Sophie;      her

parental rights were in jeopardy before and after the statutory

amendment solely because she failed to meet the court-ordered

conditions for the return of Tyler to her home.

     ¶36      As applied to Sophie, the legislature's only amendment

to the statute eliminated the factfinder's consideration of the

nine-month     period    following       a    factfinding     hearing        in    a   TPR

proceeding involving a child who remained in out-of-home care for

15 of the most recent 22 months preceding the hearing.                        Sophie's

responsibilities under the CHIPS dispositional order remained the

same, and her failure to meet her court-ordered conditions exposed

her to the same legal consequence:               the filing of a TPR petition

as soon as Tyler spent six months in out-of-home care.                       Wis. Stat.

§ 48.415(2)(a)3.        Indeed, the statutory amendment left unchanged

the Department's obligation to file a TPR petition once Tyler spent
15 months in out-of-home care.               In other words, both before and

after the amendment, Sophie was on notice that:                    (1) her parental

rights   were    at    risk   if   she       failed   to    meet    the    conditions

established for Tyler's safe return to her home, and (2) the

Department was legally obligated to file a TPR petition should she

fail to meet those conditions within 15 months of Tyler's out-of-

home placement.




                                         24
                                                                  No.     2019AP894



                             2.    "Fair Notice"

     ¶37    Lastly, Sophie asserts that her due process rights were

violated    because   she    was    deprived   of    her     constitutionally

protected right to parent her child, without "fair notice."                     In

making this argument, Sophie relies on one case: State v. Patricia

A.P., 

195 Wis. 2d 855

, 

537 N.W.2d 47

 (Ct. App. 1995).                   According

to Sophie, Patricia A.P. established a due process violation any

time a court terminates parental rights for conduct different than

the conduct described in the notice.        Sophie's characterization of

Patricia A.P. is inaccurate.

     ¶38    In Patricia A.P., the court of appeals reversed an order

terminating Patricia's parental rights to her son, concluding that

the State violated her due process rights when "the notice of the

grounds for termination she received" substantially differed from

"the grounds the State employed to terminate her rights."                  

Id. at

857-58

.    The prior version of Wis. Stat. § 48.415(2)——the one for

which Patricia received noticed——required proof that "the parent

has substantially neglected, willfully refused or been unable to
meet the conditions established for the return of the child to the

home."     

Id. at 859

. The amended version of the statute——the one

the State used to terminate Patricia's parental rights——instead

required    proof   that    "the   parent   has     failed   to    demonstrate

substantial progress towards meeting the conditions established

for the return of the child to the home."           

Id. at 860

.         Due to the

substantial differences between the two versions, the court of

appeals held that Patricia's due process rights were violated.                  In
relevant part, the court of appeals stated that "when the State
                                      25
                                                                     No.   2019AP894



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."       

Id. at 863

 (emphasis added).                The court of

appeals further held that, in Patricia's case, the change in the

statute was "not merely a matter of degree.                It [was] a change in

quality of the very nature of the acts leading to termination."

Id. at 864

 (emphases added).

     ¶39   The     change   made   to    Wis.    Stat.     § 48.415(2)(a)3       in

Sophie's case differs from the statutory change in Patricia A.P.

Unlike in Patricia A.P., the 2018 statutory amendment at issue in

Sophie's case neither "substantially changed" nor altered "[the]

quality of" the type of conduct leading to termination of parental

rights.      

Id. at 863-64

.     In       fact,   the    2018    amendment    to

§ 48.415(2)(a)3 had nothing to do with past parental conduct.                    As

already explained, the legislature's amendment aligned Wisconsin

law with federal law under ASFA with respect to children who have
been placed outside the home for more than 15 of the most recent

22 months.     In such cases, the petitioner seeking to terminate

parental rights must prove that the parent failed to meet the

conditions established for the safe return of the child, but need

not show a substantial likelihood that the parent will not meet

the conditions of return in the future——specifically, within the

nine months following the factfinding hearing.                     Under both the

prior and amended versions of the statute, the past conduct of the
parent triggering the TPR petition remains the same:                   the parent
                                        26
                                                                          No.   2019AP894



has failed to meet the conditions established for the safe return

of the child to the home.

       ¶40    In Patricia A.P., that was simply not the case.                    In that

case, the legislature had removed all language pertaining to a

parent's "culpable conduct," removing any showing of "neglect,

willfulness, or inability" of the parent.                    

Id. at 864

.        In light

of the substantive differences between the legislative changes at

issue in Patricia A.P. and the legislature's 2018 amendment to

Wis.   Stat.       § 48.415(2)(a)3      (2017-18)       at   issue   in     this    case,

Patricia A.P. has no bearing on Sophie's case.                       Both before and

after the 2018 amendment, Sophie received fair notice of the

potential deprivation of her constitutionally protected right to

parent her child, based on her failure to meet the court-ordered

conditions for the safe return of Tyler to her home.

                                  IV.    CONCLUSION

       ¶41    We hold:        (1) the "15 out of 22 months" timeframe, as

codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a)3

(2017-18),     began     to    run    when    Sophie    received     written       notice
accompanying the initial 2016 CHIPS order; and (2) starting the

"15 out of 22 months" timeframe in 2016 did not violate Sophie's

due process rights.            Accordingly, we affirm the decision of the

court of appeals.

       By    the    Court.—The       decision     of   the   court   of     appeals    is

affirmed.




                                             27
                                                                  No.        2019AP894.rfd


     ¶42    REBECCA FRANK DALLET, J.             (dissenting).           After giving

Sophie notice of the timeframe for her to complete conditions

necessary for the safe return of her son, the County now seeks to

terminate       Sophie's   parental     rights     according      to     a    new,    more

restrictive      timeframe.         Because    Sophie     received       no       effective

notice regarding this substantive change, this process violates

the heightened statutory notice requirement in termination of

parental rights cases as well as Sophie's due process rights.                              I

therefore respectfully dissent.

                                           I

     ¶43    The County removed Sophie's son, Tyler, from Sophie's

home in June 2016.         Tyler's removal was followed by a court order,

entered    in    August    2016,    that   Tyler    was    a    child        in    need   of

protection and services (a "CHIPS" order).                       Such orders must

provide the parent with notice "of any grounds for termination of

parental rights . . . and of the conditions necessary for the

child . . . to be returned to the home."                   Wis. Stat. § 48.356.

Along with specific conditions for Tyler's safe return home, the

CHIPS order listed Tyler's continuing need for protection and

services ("Continuing CHIPS") as a possible ground for terminating

Sophie's parental rights.           See Wis. Stat. § 48.415(2).                   According

to that order, the County could terminate Sophie's parental rights

by proving both that she had not yet satisfied the safe-return

conditions and that there was a substantial likelihood she would

not satisfy them within the nine months following the trial.                              See

§ 48.415(2)(a)3. (2015-16).
     ¶44    In     April    2018,    the   legislature         altered       Wis.    Stat.

§ 48.415(2)(a)3.       See 2017 Wis. Act 256.           Instead of guaranteeing

                                           1
                                                           No.    2019AP894.rfd


consideration of the nine months following the trial, the law now

required a parent in Sophie's position to have met the safe-return

conditions as of the trial date.1          See § 48.415(2)(a)3.     Thus, the

timeframe for Sophie to preserve her parental rights changed and

became more exacting.

     ¶45    The   County   filed   a   petition    to   terminate    Sophie's

parental rights in June of 2018 and then an amended petition that

September,2 stating that she had not met her safe-return conditions

within the new, shortened timeframe.              At that point, however,

Sophie had no notice of the new timeframe.              She received notice

for the first time in a CHIPS order in October 2018, after the

County filed the amended termination petition.              Yet the County

maintains that the stricter timeframe should apply, and that under

the new timeframe, Sophie receives no "look-forward" consideration

at trial.

     ¶46    Sophie responds that, by statute, her parental rights

can be terminated only in the manner for which she had notice as

of the time the County filed its amended petition.               Accordingly,

she argues, the August 2016 CHIPS order controls and her parental

rights therefore cannot be terminated unless the County also proves


     1 If the child has not been placed outside the home for a full
15 of the most recent 22 months, the parent's substantial
likelihood to meet the safe-return conditions within the remaining
months is considered at trial. Wis. Stat. § 48.415(2)(a)3. That
prospective consideration does not apply to Sophie since, as of
September 2018, Tyler had been placed outside her home for more
than 15 of the immediately previous 22 months.
     2 Initially, the County's stated ground for terminating
Sophie's parental rights was only "abandonment." See Wis. Stat.
§ 48.415(1). The County's amended petition added the Continuing
CHIPS ground at issue in this case.

                                       2
                                                                     No.    2019AP894.rfd


that she is not substantially likely to meet the safe-return

conditions within nine months after trial. She additionally argues

that the County's attempt to terminate her parental rights under

the   new   law      falls   short    of    what    constitutional         due    process

requires.

      ¶47   Sophie      is   correct       on    both    accounts.         The   County's

proceeding     under     the    new   law       without    first    notifying     Sophie

violates       the     formal     notice         requirement        in     Wis.    Stat.

§§ 48.415(2)(a)1. and 48.356(2).                That procedure also violates her

due process rights because the County's amended petition seeks to

permanently extinguish Sophie's fundamental parental rights in a

substantively different manner than that detailed in any CHIPS

order preceding the termination petition.

                                            II

      ¶48   Parents have a fundamental right to make decisions as to

the "care, custody, and control" of their children.                          Michels v.

Lyons, 

2019 WI 57

, ¶15, 

387 Wis. 2d 1

, 

927 N.W.2d 486

 (adding that

this is "'perhaps the oldest of the fundamental liberty interests

recognized' by the United States Supreme Court" (quoting Troxel v.

Granville, 

530 U.S. 57

, 65 (2000))).                    The Fourteenth Amendment to

the   United      States     Constitution        prevents     the    government     from

terminating parental rights absent due process of law.                           Santosky

v. Kramer, 

455 U.S. 745

, 753-54 (1982).                       Due process requires

procedural protections to be in place that afford parents a full

opportunity to defend against losing their parental rights.                         Brown

Cnty. v. Shannon R., 

2005 WI 160

, ¶¶5 n.4, 57, 64, 

286 Wis. 2d 278

,

706 N.W.2d 269

.        In determining what particular process is due, we

balance private interests against the government's and consider

                                            3
                                                           No.   2019AP894.rfd


the risk of error the current procedures pose in adjudicating those

private interests.       

Id., ¶57

.

       ¶49   Because parental rights are fundamental, the private

interest carries significant weight in the balancing analysis.

Indeed, terminating parental rights is a "grievous loss" that is

at least as great as any criminal penalty.                 Shannon R., 

286

Wis. 2d 278

, ¶¶58-59.       The government shares the parents' private

interest and must "assist parents" both in meeting the safe-return

conditions and in "fulfilling their responsibilities as parents."

Wis. Stat. § 48.01(1)(a).         To be sure, the government also has

countervailing        interests   in       minimizing    "instability        and

impermanence" and "eliminating the need for children to wait

unreasonable periods of time" for a parent to meet the safe-return

conditions.     

Id.

    But as important as those interests are, they

"do[] not outweigh the requirements of fundamental fairness" and

due process necessary to ensure that every proceeding to terminate

parental     rights    is   accurate    and    just.     Shannon     R.,     

286

Wis. 2d 278

, ¶¶61-64, 71.

       ¶50   To that end, the legislature has adopted "heightened

legal safeguards" to ensure that parents' "constitutional and

other legal rights" are protected during termination proceedings.

See Wis. Stat. § 48.01(ad); State v. Bobby G., 

2007 WI 77

, ¶63,

301 Wis. 2d 531

, 

734 N.W.2d 81

.            These safeguards accomplish two

related statutory goals.       One, they make sure parents have a full

and "fair" opportunity to "preserve the unity of the family."                See

§ 48.01(1)(a), (ad); Bobby G., 

301 Wis. 2d 531

, ¶¶57, 63.                    And
two, they simultaneously protect the child's best interest because

that   interest   is    "generally     best   served"   when   the   child    is

                                       4
                                                                       No.    2019AP894.rfd


"reunited with his or her family."                 Sallie T. v. Milwaukee Cnty.

Dep't Health & Human Servs., 

212 Wis. 2d 694

, 707, 

570 N.W.2d 46

(Ct. App. 1997), aff'd, 

219 Wis. 2d 296

, 

581 N.W.2d 182

 (1998);

see also Bobby G., 

301 Wis. 2d 531

, ¶¶57, 63.

      ¶51      One important safeguard is the formal advance-notice

requirement in Wis. Stat. § 48.356.                A parent must be notified of

both the grounds under which her parental rights can be terminated

and   the     safe-return       conditions      she    must     meet    to    avoid     that

termination.        

Id.

   That notice must be delivered first orally and

again within "any" written order placing the child outside the

home.    

Id.

      Proof that such formal written notice appeared in "one

or more" qualifying CHIPS orders is a prerequisite to terminating

parental         rights   on    Continuing      CHIPS        grounds.         Wis.    Stat.

§ 48.415(2)(a)1.

      ¶52      For these notice requirements to be constitutionally

"effective," the notice itself "must inform the affected party of

what 'critical issue' will be determined at the hearing" and "give

the charged party a chance to marshal the facts in [the party's]

defense."        Nnebe v. Daus, 

931 F.3d 66

, 88 (2d Cir. 2019) (quoting

Turner      v.     Rogers,     

564 U.S. 431

,       447     (2011)    and     Wolff     v.

McDonnell, 

418 U.S. 539

, 564 (1974)).                   As it pertains to notice

regarding the termination of parental rights, constitutionally

meaningful notice must include the timeframe applicable to each

ground for termination.              See Wis. Stat. § 48.415(2)(a)1.; Waukesha

Cnty.    v.      Steven   H.,    

2000 WI 28

,      ¶37,    

233 Wis. 2d 344

,         

607

N.W.2d 607

.         The timeframe is essential to achieving the goal of
family reunification because CHIPS proceedings regularly involve

parents confronting challenges related to mental health, substance

                                            5
                                                                  No.       2019AP894.rfd


abuse, financial insecurity, or any combination thereof.                             Such

major   obstacles        require    long-term          planning       and     sustained

treatment, neither of which is feasible under shifting conditions

and timeframes.     See State v. Patricia A.P., 

195 Wis. 2d 855

, 863,

537 N.W.2d 47

    (Ct.    App. 1995)     ("[I]f       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.").

      ¶53   The County's proposed procedure here meets neither the

statutory   nor    the    constitutional        notice       requirements       in    any

meaningful way.         The first time Sophie received an order under

Wis. Stat. § 48.356 containing notice of the new law's stricter

requirements      was     after     the       County     initiated          termination

proceedings.      Notice after the fact hardly qualifies as "notice"

at all. It certainly cannot have the meaningful effect of alerting

a parent to the "critical issue" of how her rights might be

terminated, as due process requires.              See Nnebe, 

931 F.3d at 88

.

      ¶54   The   majority     opinion's        approach       papers       over     this

constitutional defect.       The majority introduces a new "best guess"

concept under which the notice required by Wis. Stat. § 48.356 has

to include only the "grounds which 'may be applicable' at the time

the order is entered."            Majority op., ¶24.           Not only does the

majority impermissibly add words to the statute——"at the time the

order is entered" is nowhere in the text——its approach also

undermines the very purpose of notice.                 See DOC v. Schwarz, 

2005

WI 34

, ¶20, 

279 Wis. 2d 223

, 

693 N.W.2d 703

 ("[C]ourts should not
add words to a statute to give it a certain meaning.").                       According

to the majority, when circumstances change such that a new ground

                                          6
                                                  No.    2019AP894.rfd


applies, notice of that new ground is not required.      Under that

approach, the County could terminate parental rights without ever

having given notice of specifically how those rights could be

terminated. "[I]n the absence of effective notice," such a process

is "fundamentally hollow" and comes nowhere near allowing parents

the full and fair opportunity to protect their rights.    See Nnebe,

931 F.3d at 88

.    Given this potential for constitutional error,

particularly in light of the fundamental rights at stake, the

procedure sanctioned by the majority cannot pass constitutional

muster.

     ¶55   Due process requires that a parent must have advance,

formal notice of how her parental rights may be terminated.      That

notice must be given in a qualifying order identified in Wis. Stat.

§ 48.356 and it must be issued before termination proceedings are

initiated.   The County's attempt to extinguish Sophie's parental

rights under the new, stricter timeframe without meaningful notice

is unconstitutional.   For that reason, I respectfully dissent.

     ¶56   I am authorized to state that Justices ANN WALSH BRADLEY

and JILL J. KAROFSKY join this dissent.




                                 7
    No.   2019AP894.rfd




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