48.415 Annotation Events occurring prior to a CHIPS dispositional order are frequently relevant at a termination proceeding. A history of parental conduct may be relevant to predicting a parent’s chances of complying with conditions in the future, despite failing to do so to date. La Crosse County Department of Human Services v. Tara P., 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194, 01-3034.

48.415 Annotation In determining whether there is a substantial likelihood that a parent will not meet conditions for the return of the parent’s children, the parent’s relevant character traits and patterns of behavior and the likelihood that any problematic traits or propensities have been or can be modified in order to assure the safety of the children must be considered. La Crosse County Department of Human Services v. Tara P., 2002 WI App 84, 252 Wis. 2d 179, 643 N.W.2d 194, 01-3034.

48.415 Annotation A mother’s criminal offenses and sentences were relevant to whether she had failed to establish a substantial parental relationship with her children under sub. (6). State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, 02-1919.

48.415 Annotation Partial summary judgment may be granted in the unfitness phase of a termination case if the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness, and, taking into consideration the heightened burden of proof specified in s. 48.31 (1) and required by due process, the moving party is entitled to judgment as a matter of law. Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, 02-2860.

48.415 Annotation As applied in this case the incestuous parenthood ground under sub. (7) is not narrowly tailored to advance the compelling state interest underlying the statute. It is fundamentally unfair to terminate parental rights based solely on a parent’s status as a victim of incest. Monroe County Department of Human Services v. Kelli B., 2004 WI 48, 271 Wis. 2d 51, 678 N.W.2d 831, 03-0060.

48.415 Annotation The holding in Jennifer V., 200 Wis. 2d 678 (1996), is limited to appeals based on guilt or innocence. When a parent’s pending appeal does not raise issues of guilt or innocence, “final judgment of conviction” in sub. (9m) means the judgment of conviction entered by the trial court, either after a verdict of guilty by the jury, a finding of guilty by the court when a jury is waived, or a plea of guilty or no contest. Reynaldo F. v. Christal M., 2004 WI App 106, 272 Wis. 2d 816, 681 N.W.2d 289, 03-2687.

48.415 Annotation A parent’s prior convictions are not so prejudicial as to outweigh their probative value when the information would lead the jury to an understanding of why children are removed from the parent’s home. Reynaldo F. v. Christal M., 2004 WI App 106, 272 Wis. 2d 816, 681 N.W.2d 289, 03-2687.

48.415 Annotation Sub. (4) does not violate substantive due process by not requiring any evidence of parental unfitness. There are required steps that must be taken before reaching the application of sub. (4) in a termination of parental rights case and those steps form the foundation for the ultimate finding. At each of those steps, findings must be made that reflect on the parent’s fitness. Dane County Department of Human Services v. P.P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, 03-2440.

48.415 Annotation The notice requirement provisions of sub. (4) (a) are a part of the clause pertaining to juvenile court orders and are inapplicable to the clause pertaining to family court orders. The fact that s. 767.24 (4) (d) [now s. 767.41 (4) (d)] requires a family court to provide the applicable notice does not establish that provision of the notice is an element of proof under sub. (4). Kimberly S.S. v. Sebastian X.L., 2005 WI App 83, 281 Wis. 2d 261, 697 N.W.2d 476, 04-3219.

48.415 Annotation The biological father of a nonmarital child satisfies the definition of parent in s. 48.02 (13), as he is a biological parent notwithstanding that he has not officially been adjudicated as the child’s biological father, and may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child’s biological father. State v. James P., 2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d 95, 04-0723.

48.415 Annotation When a parent is incarcerated and the only ground for parental termination is that the child continues to be in need of protection or services solely because of the parent’s incarceration, sub. (2) requires that the court-ordered conditions of return are tailored to the particular needs of the parent and child. A parent’s incarceration is not a sufficient basis to terminate parental rights. Other factors must be considered, such as the parent’s relationship with the child both prior to and while the parent is incarcerated, the nature of the crime committed, the length and type of sentence imposed, the parent’s level of cooperation with the responsible agency and the Department of Corrections, and the best interests of the child. Kenosha County Department of Human Services v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, 05-0002.

48.415 Annotation Sub. (10) (b) requires that within the three years prior a court has terminated the parent’s rights to another child in an involuntary termination proceeding, but does not require proof of which of the available 12 grounds set out in this section was the basis for the involuntary termination. Oneida County Department of Social Services v. Nicole W., 2007 WI 30, 299 Wis. 2d 637, 728 N.W.2d 652, 05-2656.

48.415 Annotation In determining whether a party seeking termination of parental rights has proven by clear and convincing evidence that a biological father has failed to assume parental responsibility under sub. (6), a circuit court must consider the biological father’s efforts undertaken after he discovers that he is the father but before the circuit court adjudicates the grounds of the termination proceeding. State v. Bobby G., 2007 WI 77, 301 Wis. 2d 531, 734 N.W.2d 81, 06-0066.

48.415 Annotation The three-month abandonment ground under sub. (1) (a) 2. is effectively an exception to the more general requirement of six months of abandonment under sub. (1) (a) 3. The three-month provision is a special scenario justifying a shorter abandonment period. When there is an active CHIPS order, it is a given that the child has been facing some kind of peril, and a shorter abandonment period is therefore appropriate and in the child’s best interests. When a CHIPS order has been terminated or allowed to lapse, it is reasonable to assume that the parental situation has changed and the reason for the shorter abandonment period is no longer present. Heather B. v. Jennifer B., 2011 WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10-2528.

48.415 Annotation Sub. (1) (a) 2. requires that the three-month abandonment period fall within the duration of a CHIPS-based placement of the child outside the parent’s home. Heather B. v. Jennifer B., 2011 WI App 26, 331 Wis. 2d 666, 794 N.W.2d 800, 10-2528.

48.415 Annotation Under sub. (6) (a), a fact-finder must look to the totality of the circumstances to determine if a parent has assumed parental responsibility. The phrase “have not had” does not direct the fact-finder to consider only a limited time period. Rather, the statute gives latitude to the fact-finder to consider the entirety of the child’s life and determine if the parent’s actions have been sufficient to find that the parent has assumed parental responsibility. Under the totality-of-the-circumstances test, a fact-finder may consider whether, during the time the parent is caring for the child, the parent exposes the child to a hazardous living environment. Tammy W-G. v. Jacob T., 2011 WI 30, 333 Wis. 2d 273, 797 N.W.2d 854, 09-2973.

48.415 Annotation Even though there is no restraint of the petitioner’s liberty, the writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) when appellate counsel fails to appeal before the deadline. Under s. 809.82 (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition is filed by someone other than a representative of the public. If the court is not able to recognize the petitioner’s right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G., 2013 WI App 83, 348 Wis. 2d 593, 834 N.W.2d 432, 13-0731.

48.415 Annotation Sub. (2) (a) 1. makes the written notice in s. 48.356 (2), the CHIPS statute, an element to prove in a termination of parental rights case grounded in continuing CHIPS. The plain language of sub. (2) (a) 1. provides that the statutory notice requirements are satisfied when at least one of the CHIPS orders contains the written notice required under s. 48.356 (2). Sub. (2) (a) does not require that notice be given in every CHIPS order, and it does not require that notice be in the last CHIPS order. St. Croix County Department of Health & Human Services v. Michael D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d 107, 14-2431.

48.415 Annotation The agency does not need to wait six months after the last out-of-home placement order is issued before filing a termination of parental rights petition under sub. (2) (a). Sub. (2) (a) 3. does not require that the six-month period must be after the last CHIPS dispositional order or extension; rather, the six-month period is a cumulative total period under the CHIPS orders. St. Croix County Department of Health & Human Services v. Michael D., 2016 WI 35, 368 Wis. 2d 170, 880 N.W.2d 107, 14-2431.

48.415 Annotation Denying a defendant the opportunity to present the defendant’s case-in-chief in a termination of parental rights proceeding is a structural error, the consequence of which is an automatic new trial. State v. C.L.K., 2019 WI 14, 385 Wis. 2d 418, 922 N.W.2d 807, 17-1413.

48.415 Annotation The plain language of sub. (1) (a) permits the Brown County Human Services Department to plead any factually and legally applicable statutory basis for abandonment, and the department was not limited to seeking termination of parental rights under sub. (1) (a) 2., despite the fact that the child was placed outside of each parent’s home pursuant to a CHIPS order. Brown County Human Services v. B.P., 2019 WI App 18, 386 Wis. 2d 557, 927 N.W.2d 560, 18-1259.

48.415 Annotation The involuntary placement of a child pursuant to an out-of-home CHIPS order satisfies sub. (1) (a) 3.’s “has been left” element. Brown County Human Services v. B.P., 2019 WI App 18, 386 Wis. 2d 557, 927 N.W.2d 560, 18-1259.

48.415 Annotation Sub. (2) (a), the continuing CHIPS ground at issue in this case, was amended by 2017 Wis. Act 256. In this case, although the orders placing the respondent’s children outside the home were first entered in CHIPS cases before sub. (2) (a) was amended, when the county filed petitions to terminate the respondent’s parental rights (TPR) after that amendment took effect, the county was required to establish the elements for the continuing CHIPS ground as set forth in the amended version of sub. (2) (a). When the county filed the TPR petitions, the amended version of the continuing CHIPS ground was the only version of that ground that could form the basis of the TPR petitions pursuant to the dictates of this section and s. 48.42 (1) (c) 2. Dane County Department of Human Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614, 19-0820. See also Eau Claire County Department of Human Services v. S.E., 2021 WI 56, 397 Wis. 2d 462, 960 N.W.2d 391, 19-0894.

48.415 Annotation The county’s petitioning for termination of parental rights based on the amended version of sub. (2) (a) was not a retroactive application of the statute and, thus, did not violate the respondent’s due process rights. Dane County Department of Human Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614, 19-0820. See also Eau Claire County Department of Human Services v. S.E., 2021 WI 56, 397 Wis. 2d 462, 960 N.W.2d 391, 19-0894.

48.415 Annotation The absence in sub. (9m) (b) 3. of language in sub. (9m) (b) 1. relating to aiding or abetting, solicitation, and conspiracy indicates that a person’s parental rights cannot be terminated based on a conviction for neglect of a child resulting in death, as a party to the crime, if the person aided or abetted that crime, solicited the commission of that crime, or conspired to commit it. Instead, reading sub. (9m) (b) 3. in context with sub. (9m) (b) 1., a conviction for neglect of a child resulting in death as a party to the crime qualifies as a serious felony for purposes of sub. (9m) only if the individual in question “directly committed” that crime as provided under s. 939.05 (2) (a). Brown County Department of Human Services v. S.K., 2023 WI App 27, 407 Wis. 2d 893, 992 N.W.2d 208, 22-1432.

48.415 Annotation Process is constitutionally due a natural parent at a state-initiated parental rights termination proceeding. Discussing a three-factor test. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

48.415 Annotation Adoption and Termination Proceedings in Wisconsin: Straining the Wisdom of Solomon. Hayes & Morse. 66 MLR 439 (1983).

48.417 48.417 Petition for termination of parental rights; when required.

48.417(1) (1) Filing or joining in petition; when required. Subject to sub. (2), an agency or the district attorney, corporation counsel or other appropriate official designated under s. 48.09 shall file a petition under s. 48.42 (1) to terminate the parental rights of a parent or the parents of a child, or, if a petition under s. 48.42 (1) to terminate those parental rights has already been filed, the agency, district attorney, corporation counsel or other appropriate official shall join in the petition, if any of the following circumstances apply: