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In re Termination of Parental Rights to A. P.

Court of Appeals of Wisconsin, District III

March 1, 2019

In re the termination of parental rights to A. P., a person under the age of 18:
v.
B. P., Respondent-Appellant. Brown County Human Services, Petitioner-Respondent, In re the termination of parental rights to A. P., a person under the age of 18: Brown County Human Services, Petitioner-Respondent,
v.
T.F., Respondent-Appellant.

          APPEALS from orders of the circuit court for Brown County, No. 2017TP38 THOMAS J. WALSH, Judge.

          Before Stark, P. J., Hruz and Seidl, JJ.

          STARK, P.J.

         ¶1 B.P. and T.F. appeal partial summary judgment orders finding that grounds exist to terminate their parental rights. The circuit court concluded, under WIS. STAT. § 48.415(1)(a)3. (2017-18), [1] that B.P. and T.F. each abandoned their daughter, Allie.[2]

         ¶2 T.F. alleges the circuit court erred in concluding the Brown County Human Services Department (the Department) properly pleaded that she abandoned Allie under WIS. STAT. § 48.415(1)(a)3. (hereinafter, "subd. 3."). She argues the Department failed to state a claim for which relief could be granted because it pleaded a legally inapplicable ground for the termination of her parental rights. Specifically, T.F. contends that "[i]f the government seeks to terminate a parent's rights on grounds of abandonment in a case where an out-of-home [Child in Need of Protection or Services (CHIPS)] order is in place," it is limited to proceeding under § 48.415(1)(a)2. (hereinafter, "subd. 2."), which specifically references such cases, and it may not proceed under subd. 3., which contains no such reference. In addition, T.F. argues that subd. 3.'s abandonment ground was not applicable because one of its elements-that the child was "left" by a parent with another person-cannot be met given that Allie was involuntarily removed from T.F.'s home pursuant to a CHIPS order. T.F. also contends that the Department's petition to terminate her parental rights under the subd. 3. abandonment ground violates her constitutional right to equal protection. Finally, both T.F. and B.P. allege the court erred by granting the Department's partial summary judgment motion because genuine issues of material fact exist as to their statutory good cause defenses for abandoning Allie.

         ¶3 We conclude that in a termination of parental rights (TPR) action, WIS. Stat. § 48.415(1)(a)'s plain language permits the Department to plead any factually and legally applicable statutory basis for abandonment. Therefore, the Department was not limited to seeking termination of T.F.'s and B.P.'s parental rights under subd. 2., despite the fact that Allie was placed out of each parent's home pursuant to a CHIPS order. We further conclude that the involuntary placement of a child pursuant to an out-of-home CHIPS order can satisfy subd. 3.'s "has been left" element. We decline to consider T.F.'s equal protection argument because she did not raise this claim in the circuit court and failed to serve the Wisconsin Attorney General with notice that she claims subd. 3. is unconstitutional when applied to her in this instance. However, we do conclude that T.F.'s good cause defense was not rendered irrelevant by application of subd. 3. Accordingly, we hold the circuit court properly permitted the Department to seek termination of T.F.'s and B.P.'s parental rights under subd. 3.

         ¶4 We further affirm the circuit court's grant of the Department's partial summary judgment motion against B.P. because he failed to raise sufficient issues of material fact regarding his good cause defense for abandoning Allie so as to warrant a fact-finding hearing. However, we determine the circuit court erred in granting partial summary judgment against T.F. because material questions of fact exist as to her good cause defense for abandoning Allie. Accordingly, we reverse the circuit court's grant of partial summary judgment against T.F. and remand her case for a fact-finding hearing in accordance with WIS. STAT. § 48.424.[3]

         BACKGROUND

         ¶5 Allie was born to her mother T.F. and father B.P. in June 2014. In July 2014, Marinette County initiated CHIPS proceedings and was granted temporary custody of Allie. In October 2014, the circuit court found Allie was in need of protection or services, and it entered a CHIPS dispositional order that placed her in a foster home in Marinette, Wisconsin.[4] In March 2015, court orders were entered changing venue of this action to Brown County and Allie's physical placement to a different foster home in Brown County. A subsequent court order in June 2016 returned Allie's placement to her original foster parent, who had moved to Madison. Since Allie's original removal in July 2014, she has never returned to either T.F.'s or B.P.'s care.

         ¶6 On October 30, 2017, the Department filed petitions to permanently and involuntarily terminate T.F.'s and B.P.'s parental rights. The petitions alleged both parents had abandoned Allie for a period of six months or longer. See WIS. STAT. § 48.415(1)(a)3. Both T.F. and B.P. contested the petitions. Following discovery, the Department moved for partial summary judgment contending that grounds existed to terminate T.F.'s and B.P.'s parental rights. In opposition, T.F. argued the Department had pleaded a legally inapplicable ground because Allie was involuntarily removed from her home pursuant to a CHIPS order. Both T.F. and B.P. claimed good cause under § 48.415(1)(c) as a defense for failing to visit or communicate with Allie during the six-month period.

         ¶7 The circuit court granted the Department's partial summary judgment motion. The court concluded the Department properly sought termination of T.F.'s and B.P.'s parental rights under subd. 3., that no genuine issues of material fact existed, and that T.F. and B.P. each abandoned Allie for a period of six months or longer between January 1, 2017, and October 30, 2017. It further determined that neither T.F. nor B.P. satisfied the statutory good cause defenses to abandonment. This consolidated appeal follows. Additional facts are provided below.

         DISCUSSION

         ¶8 We address two main issues on appeal. T.F. first argues that the Department pleaded a legally inapplicable abandonment ground in its TPR petition, and in so doing violated her constitutional right to equal protection under the law. Second, T.F. and B.P. each assert that partial summary judgment was inappropriate because genuine issues of material fact exist as to their good cause defenses to abandonment.

         I. The Department Pleaded a Legally and Factually Proper Statutory TPR Ground.

         ¶9 T.F.'s statutory interpretation argument is two-fold. She initially argues that when an out-of-home CHIPS order is in place, the Department is required to plead abandonment under subd. 2., which relates specifically to CHIPS orders. Here, the Department pleaded abandonment under subd. 3., a subdivision that does not contain language specifically referencing CHIPS orders. Second, T.F. argues that the Department failed to state a claim for which relief can be granted because one of subd. 3.'s elements-that the parent must have "left" the child with another person-cannot be met in TPR cases involving out-of-home CHIPS placements.

         ¶10 We begin questions of statutory interpretation by looking at the text of the statute. State ex rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially defined words or phrases are given their technical or special definitional meaning. Id. We interpret statutory language in the context in which it is used, in relation to the language of surrounding or closely related statutes, and reasonably, to avoid absurd or unreasonable results. Id., ¶46. We may consider the statute's purpose, to the extent it is readily apparent from the statutory text or from the statute's context or structure. Id., ¶49. We cannot, however, read language into the statute that does not exist. St. Croix Cty. DHHS v. Michael D., 2016 WI 35, ¶17, 368 Wis.2d 170, 880 N.W.2d 107. If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning. Kalal, 271 Wis.2d 633, ¶46. The interpretation and application of a statute present questions of law that we review de novo while benefiting from the analyses of the circuit court. State v. Arberry, 2018 WI 7, ¶14, 379 Wis.2d 254, 905 N.W.2d 832.

         A. WISCONSIN Stat. § 48.415(1)(a) permits the Department to plead any abandonment ground.

         ¶11 We first address T.F.'s argument that when an out-of-home CHIPS order is in place, the Department is required to plead abandonment under subd. 2. WISCONSIN STAT. § 48.415 lists the different grounds to involuntarily terminate a parent's rights, one of which is abandonment. In relevant part, the statute states:

(a) Abandonment ... shall be established by proving any of the following:
. . . .
2. That the child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by s. 48.356(2) or s. 938.356 (2) and the parent has failed to visit or communicate with the child for a period of 3 months or longer.
3. The child has been left by the parent with any person, the parent knows or could discover the whereabouts of the child and the parent has failed to visit or communicate with the child for a period of 6 months or longer.

         Sec. 48.415(1)(a) (emphasis added).

         ¶12 The Department contends that WIS. STAT. § 48.415(1)(a)'s plain language permits it to plead any abandonment ground. We agree. For the purposes of statutory interpretation, the plain meaning of words may be established by consulting dictionary definitions. See State v. Sample, 215 Wis.2d 487, 499, 573 N.W.2d 187 (1998). "Any" means "one, some, or all indiscriminately of whatever quantity." Any, WEBSTER'S THIRD NEW International Dictionary (1993). Additionally, the phrase "shall be established by proving" refers to the elements the Department is required to prove, depending on the abandonment ground it pleads. See Heather B. v. Jennifer B., 2011 WI.App. 26, ¶9, 331 Wis.2d 666, 794 N.W.2d 800 (stating that subd. 2. has two elements). Read together, the plain meaning of § 48.415(1)(a) allows the Department to plead in its TPR petition any factually and legally applicable abandonment ground.

         ¶13 T.F. nonetheless argues that the legislature intended for the Department to proceed only under subd. 2.'s CHIPS-specific abandonment ground when an out-of-home CHIPS order is present because: (1) subd. 2. includes an express reference to CHIPS orders; and (2) subd. 2. is otherwise rendered superfluous. We disagree with T.F.'s interpretation, as it would read language into WIS. STAT. § 48.415(1)(a), which we cannot do. See Michael D., 368 Wis.2d 170, ¶I7. Section 48.415(1)(a) lacks restrictive language requiring the Department to plead only subd. 2. in a case where an out-of-home CHIPS order is present. Furthermore, as we have explained above, T.F.'s interpretation would require us to ignore the word "any" within § 48.415(1)(a), which we also cannot do. We assume that the legislature's intent is expressed in the statutory language, and we must give effect to every word. Kalal, 271 Wis.2d 633, ¶¶44-45.

         ¶14 Additionally, permitting the Department to plead abandonment under subd. 3. in TPR cases involving out-of-home CHIPS placements does not render subd. 2. superfluous. Subdivisions 2. and 3. each have different elements, and the differing facts and circumstances in each parent's case dictate the applicable subdivision under which the Department may choose to proceed. If the Department can prove that a child subject to a CHIPS order has been placed or continued in placement outside of a parent's home, that the child's parent was provided with the notice required by WIS. STAT. § 48.356(2) or WIS. STAT. § 938.356(2), and that the parent has failed to visit or communicate with the child for a period of three months or longer, then the Department may proceed under subd. 2. However, regardless of whether a CHIPS order exists, if the Department can prove that a parent left his or her child with another person, that the parent could discover the child's whereabouts, and that the parent failed to visit or communicate with the child for six months or longer, then the ...


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