DUNN COUNTY HUMAN SERVS. v. DEBRA, 2009 WI App 27

316 Wis.2d 413, 763 N.W.2d 559

Nos. 2008AP001775, 2008AP001776, 2008AP001777.Court of Appeals of Wisconsin.
January 9, 2009.

APPEALS from orders of the circuit court for Dunn County: ROD W. SMELTZER, Judge. Reversed and causes remanded with directions.

BRUNNER, J.[1]

¶ 1 Debra O. appeals orders terminating her parental rights to Deanna D., Daniela D., and Domenique D. Debra contends she was given inadequate notice of the conditions necessary to return her children to the home or to grant visitation, in violation of WIS. STAT. § 48.356. She also argues a condition for visitation was improper because it was not within her power to satisfy the condition. We agree with both contentions, reverse the orders, and remand with directions.[2]

BACKGROUND ¶ 2 Dunn County[3] filed a petition to terminate Debra’s parental rights in November 2007, alleging, as the single ground, a continuing denial of periods of physical placement or visitation under WIS. STAT. §48.415(4). A September 2004 permanency plan order had allowed visitation, but only if each child agreed to the visitation.[4] That order did not otherwise specify what conditions were necessary for either return to the home or visitation. Attached to the order was a two-page document titled Conditions for Disposition and another sheet titled Additional Conditions Ordered by the Court. The attachments contained lists of items, some of which might have been conditions for either return or visitation, and others which clearly were not. The provision concerning the children agreeing to visitation appeared on the “Additional Conditions” sheet. The court did not check the box on the order indicating Debra was advised of the conditions necessary for return or visitation.[5] The permanency plan itself contained a section to include the court-ordered conditions for return of the child to the home. However, neither of the boxes on the form was checked and the space for listing conditions was left blank.

¶ 3 Some visitation occurred following the September 2004 order, but the children were opposed to it and ultimately terminated visitation. A September 2006 Order for Revision of Dispositional Order then denied Debra physical placement and visitation with the three children.[6]
That order did not list any conditions necessary for granting placement or visitation. However, the form order stated: “All provisions of the dispositional order not changed by this order remain in full force and effect.”

¶ 4 The County moved for summary judgment at the grounds stage of the termination proceeding, contending Debra had been denied both placement and visitation by an order in effect for over one year, based on the September 2006 order. Debra filed a motion to dismiss and a response to the County’s motion, arguing she was not provided with the notice of conditions required by WIS. STAT. § 48.356. The court concluded the conditions set forth in the September 2004 permanency plan order were still applicable and granted the County’s motion for summary judgment.

DISCUSSION ¶ 5 Motions to dismiss and for summary judgment are both subject to our de novo review. Converting/Biophile Labs., Inc. v. Ludlow CompositesCorp., 2006 WI App 187, ¶ 13, 296 Wis. 2d 273, 281, 722 N.W.2d 633. The County argues the documentary evidence established it was entitled to summary judgment that grounds existed for TPR under WIS. STAT. § 48.415(4). That statute states:

Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following:
(a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under [numerous sections] containing the notice required by s. 48.356(2). . . .

(b) That at least one year has elapsed since the order denying . . . placement or visitation was issued and the court has not subsequently modified its order so as to permit . . . placement or visitation. (Emphasis added.) WISCONSIN STAT. § 48.356, in turn, requires the court to inform the parent “of the conditions necessary for the child . . . to be returned to the home or for the parent to be granted visitation.”

¶ 6 The notice required by WIS. STAT. §§ 48.356 and 48.415(4) is “necessary to give a parent an opportunity to conform his or her conduct to avoid termination of parental rights.” Waukesha County v. Steven H., 2000 WI 28, ¶ 25, 233 Wis. 2d 344, 607 N.W.2d 607.[7] The circuit court’s duty to warn is part of the “panoply of procedures” the legislature created “to assure that parental rights will not be terminated precipitously or capriciously when the state exercises its awesome power to terminate parental rights.” Id.

¶ 7 The County acknowledges the September 2006 Order for Revision of Dispositional Order failed to include the WIS. STAT. § 48.356
conditions, but argues the form language referring to the prior dispositional order was sufficient to provide notice. Specifically, the County asserts the form language adequately referred Debra to the September 2004 permanency plan order, and that order satisfied the notice requirement. The County’s argument is flawed for three primary reasons.

¶ 8 First, there were three permanency plan orders and one dispositional order filed between the September 2004 and September 2006 orders.[8] There were also three more permanency plan orders issued before the TPR petition was filed. Not one of those seven orders referenced any conditions for placement or visitation.

¶ 9 Second, the form language refers to “provisions of the dispositional order.” A dispositional order is not the same as a permanency plan order, in title or substance. Thus, it was not clear that Debra should attempt to refer to an old permanency plan order to locate the necessary conditions. Further, the interceding August 2005 Order for Revision of Dispositional Order was limited to the issue of baptism and did not include any conditions for return or visitation. Rather, it stated that all court-ordered conditions from any prior dispositional orders remained in effect. Thus, if Debra were able (in September 2006) to locate the May 2003 Order for Revision of Dispositional Order, she would need to refer to it to find the latest notice of conditions.

¶ 10 It is unreasonable to expect a parent to refer back through so many orders to determine whether expired conditions were still relevant.[9] This is especially true given that those conditions were established six months prior to the dismissal of the earlier TPR petition filed against Debra. Given the number of intervening and subsequent orders lacking a notice of conditions, and the fact the form language referred to the prior dispositional order, the September 2006 order did not adequately refer Debra to the September 2004 permanency plan order conditions.

¶ 11 Third, even if we assumed Debra was adequately referred to the September 2004 permanency plan order, that order fails to satisfy the statutory notice requirement for three reasons. First, the order did not prohibit visitation; it permitted visitation if there was agreement by, among others, the children. Visitation then occurred, without the circuit court having to enter a new order. Hence, the order was not one described by WIS. STAT. § 48.415(2). Second, the permanency plan itself did not list any conditions in the designated location on the form. Finally, the order failed to clearly identify what conditions applied to gaining visitation and/or placement. In fact, looking at the three pages of attachments, with two exceptions, this court cannot determine what conditions Debra had to comply with in order to gain visitation or placement.

¶ 12 The County asserts that the “same conditions that were necessary for Debra to have the children returned to her home were also necessary for Debra to be granted visitation.” While this is a convenient statement, the County provides no citation or explanation demonstrating why this is true. The only condition that references visitation is the one requiring the children’s consent to visitation. Certainly the County does not contend that, without further court order, Debra could have also gained placement if the children simply agreed to it. Conversely, there is a requirement that Debra provide “adequate clothing, food, and furniture, so as to allow for future potential placement” of the children. Would failing to do so prevent her from having supervised visits with her children? In addition, the attachments to the order listed numerous other general requirements, such as a prohibition against Debra violating any laws, as well as other items that cannot be described as conditions or requirements.[10] The various items are not listed in any particular order, some are repetitive, and there are no headings indicating which items are the conditions for placement or visitation.

¶ 13 In Waushara County v. Lisa K., 2000 WI App 145, ¶¶ 9-10, 237 Wis. 2d 830, 615 N.W.2d 204, we recognized there was a distinction between specific conditions for gaining placement or visitation, as opposed to general requirements in an order. Parents should not be left to guess what it is they must accomplish in order to gain visitation or placement of their children. Rather, WIS. STAT. § 48.356 requires parents be informed of concrete conditions that, once achieved, will entitle them to reunification. Indeed, in these cases, the court’s orders and the county agency’s reports often stated Debra substantially complied with the permanency plan. The agency reported that Debra attended therapy and tried very hard and that the primary obstacle to reunification was the children’s unwillingness to have contact with her.

¶ 14 To the extent the visitation condition in the September 2004 permanency plan order is relied on to demonstrate compliance with the notice requirement, we agree with Debra that it is inappropriate to set conditions for visitation that are beyond a parent’s control. See StevenH., 233 Wis. 2d 344, ¶¶ 24-25, 32, 37 (the intent of the notice is to permit the parent to make necessary changes); Kenosha County DHS v. JodieW., 2006 WI 93, ¶¶ 49-56, 293 Wis. 2d 530, 716 N.W.2d 845 (courts cannot terminate parental rights based solely on a failure to satisfy an impossible condition of return). It is especially inappropriate to place the conditions within the children’s exclusive control.

¶ 15 Finally, we recognize it may not be necessary in every TPR case to demonstrate that the parent was provided the requisite notice of conditions in every single order, as long as the parent had adequate notice given the facts of the case. See Steven H., 233 Wis. 2d 344; LisaK., 237 Wis. 2d 830. However, these cases are not a close call. There was substantial noncompliance here. On remand, the circuit court is directed to enter summary judgment in favor of Debra, dismissing the TPR petition.[11]
By the Court. — Orders reversed and causes remanded with directions.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.