St. Croix County Department of Health and Human Services v. Michael D. , 368 Wis. 2d 170 ( 2016 )

2016 WI 35SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2431
COMPLETE TITLE: In re the termination of parental rights to
Matthew D., a person under the age of 18:
St. Croix County Department of Health and Human
Services,
Petitioner-Respondent-Petitioner,
v.
Michael D.,
Respondent,
Juanita A.,
Respondent-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 360 Wis. 2d 492, 864 N.W.2d 121)
(Ct. App. 2015 – Unpublished)
OPINION FILED: May 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 17, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: St. Croix
JUDGE: Edward F. Vlack, III
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs, joined by BRADLEY, R.
G., J.
PROSSER, J. concurs
BRADLEY, R. G., J. concurs
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(co-authored)
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
by Steven L. Miller and St. Croix Department of Health and Human
Services, and oral argument by Steven L. Miller.
For the respondent-appellant, there was a brief by Susan E.
Alesia, assistant state public defender, and oral argument by
Susan E. Alesia.
2
2016 WI 35NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2431
(L.C. No. 2013TP10)
STATE OF WISCONSIN : IN SUPREME COURT
In re the termination of parental rights to
Matthew D., a person under the age of 18:
St. Croix County Department of Health and Human
Services,
Petitioner-Respondent-Petitioner, FILED
v. MAY 12, 2016
Michael D., Diane M. Fremgen
Clerk of Supreme Court
Respondent,
Juanita A.,
Respondent-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA G. BRADLEY, J. The issues before us arise
from St. Croix County's petition to terminate Juanita A.'s
parental rights to her son, Matthew D., born March 23, 2009.
The petition alleges both that Matthew was a child in continuing
need of protection or services ("continuing CHIPS"), under Wis.
No. 2014AP2431
Stat. § 48.415(2)(2013-14),1 and that Juanita failed to assume
parental responsibility, under Wis. Stat. § 48.415(6).2 We must
determine whether Juanita received proper notice under
§ 48.415(2), and, if so, whether sufficient evidence supports the
remaining elements of the continuing CHIPS ground for
termination. The notice issue requires us to clarify whether
Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607
N.W.2d 607, created an unequivocal rule that the statutorily
prescribed written notice must be given in the last order
placing a child outside his or her home and whether six months
must pass after that last order before filing a termination of
parental rights ("TPR") petition.
¶2 We hold that the notice Juanita received satisfied the
statutory notice requirement in a TPR action based on continuing
CHIPS, and that the evidence was sufficient to support the
remaining elements of continuing CHIPS set forth in Wis. Stat.
§ 48.415(2). We further hold that Steven H. did not establish a
"last order, plus six-months rule"; rather, Steven H. emphasized
that parents facing termination of parental rights based on
continuing CHIPS must have received written notice in one or
1
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise indicated. We cite to the most
recent version of the statutes because no pertinent changes have
been made.
2
St. Croix County's termination of parental rights petition
also included Matthew's father, Michael D., but Michael D. did
not contest the petition.
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No. 2014AP2431
more court orders warning them that termination may occur. In
Steven H., the last order contained the written notice;
therefore, based on the facts in that particular case, the
written notice required by § 48.415(2) was satisfied by the last
order.
¶3 In adhering to the important principle of stare
decisis, we do not overrule Steven H. Rather, we acknowledge
that two sentences in that case directly contradict the plain
language of Wis. Stat. § 48.415(2). As a result, our circuit
and appellate courts have issued inconsistent decisions when
addressing factual scenarios such as the one presented here
where the last order does not comply with the statutory notice
requirements, but the circuit court finds another order did
comply and the parent was adequately warned that parental rights
were at stake and how to prevent a termination of those rights.
Since Steven H., circuit courts have had to decide whether to
follow the plain statutory language when a parent did not
receive notice in the last order or follow the two sentences in
Steven H. that conflict with the court's extensive discussion of
the legislative purpose of Wis. Stats. §§ 48.356(2) and
48.415(2)——to provide adequate notice to parents. Our opinion
clarifies Steven H. so that our circuit courts are able to
consistently apply the plain language of the statute, and ensure
that parents facing termination of their parental rights receive
the notice required by Wis. Stat. § 48.415(2) without delaying a
very important purpose of these statutes——permanency for the
child.
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¶4 Accordingly, we clarify Steven H., leaving intact its
analysis and discussion; however, the conflicting sentence in
paragraph 3 is withdrawn3 and we clarify that the last sentence
in paragraph 31 shall not be construed to create a last order,
six-months rule. The language in the last sentence in paragraph
31 is limited to the facts of Steven H. where only the last
order contained the written notice and the child had been out of
the home for six months or longer.4 The plain language of
§ 48.415(2) does not require that the written notice must be in
the last order or that six months must pass after the last order
before the petition to terminate parental rights may be filed.
Accordingly, we reverse the court of appeals' decision5 and
affirm the circuit court's order6 terminating Juanita's parental
rights to Matthew.
3
We withdraw this sentence: "We conclude that Wis. Stat.
§§ 48.356(2) and 48.415(2) require that the last order specified
in § 48.356(2) placing a child outside the home, which must be
issued at least six months before the filing of the petition to
terminate parental rights, must contain the written notice
prescribed by § 48.356(2)." Waukesha Cnty. v. Steven H., 2000
WI 28, ¶3, 233 Wis. 2d 344, 607 N.W.2d 607.
4
The last sentence in paragraph 31 of Steven H. states:
"Under § 48.415(2) the parents will be given adequate notice of
the conditions for return and time to make any necessary changes
to forestall the termination of parental rights if the last
order issued at least six months before the filing of the
petition involuntarily terminating parental rights contains the
written notice." Steven H., 233 Wis. 2d 344, ¶31.
5
St. Croix Cnty. DHHS v. Michael D., No. 2014AP2431,
unpublished slip op. (Wis. Ct. App. Jan. 16, 2015).
6
The Honorable Edward F. Vlack presiding.
4
No. 2014AP2431
I. BACKGROUND
¶5 Juanita has physical, cognitive and mental health
challenges. When Matthew was born on March 23, 2009, Juanita
had two other sons in her home, 12-year-old John, who is
autistic, and 3-year-old Henry, who was removed from Juanita's
home in May 2009 because Juanita was unable to properly
supervise and maintain reasonable control over Henry. Juanita's
parental rights to Henry were terminated in May 2012. When
Matthew was eight days old, he was removed from Juanita's home
based on reports that Matthew's two older brothers had dropped
him, shaken him, and were not properly supporting his head when
holding him. Matthew was returned to Juanita at the end of May
2009.
¶6 In June 2009, the circuit court found Matthew to be a
child in need of protection or services following an incident
where police were called to Juanita's home and found Matthew
struggling to breathe. Juanita told police Matthew had not
taken a breath for a minute and his lips turned blue, but she
did not want to call 911 for a "little problem like that."
Matthew was taken to the hospital for treatment. He recovered
and remained in Juanita's care subject to certain conditions and
with support and services in place to assist her. The circuit
court extended this in-home placement continuing CHIPS order
several times. At the end of July 2011, when Matthew was almost
two and one-half years old, he was again removed from Juanita's
home, based on concerns that Juanita could not properly care for
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No. 2014AP2431
him and that her inability to adequately supervise Matthew put
him in danger.
¶7 In August 2011, the circuit court issued a written
CHIPS order changing Matthew's placement from Juanita's home to
a foster home. At a court hearing on October 5, 2011, where
Juanita appeared with her lawyer, the circuit court read the TPR
warnings to Juanita, and on October 11, 2011, the court issued a
dispositional order amending the August order and attaching the
conditions Juanita was required to meet before Matthew could be
returned to her home. This October 11 order also had attached a
"Notice Concerning Grounds to Terminate Parental Rights" that
Juanita had signed. Under Wis. Stat. § 48.356, whenever the
court orders a child to be placed outside the home because the
child has been found to be in need of protection or services,
the court must orally inform the parent—if present in court—of
any applicable grounds for termination of parental rights and
the conditions necessary for the child to be returned to the
home. Additionally, any written order placing a child outside
the home, or extending the out-of-home placement, must contain
this information.
¶8 Juanita returned to the circuit court on December 12,
2011, where the court again gave oral TPR warnings to Juanita
and ordered an extension of the October 11 dispositional order.
The extension contained a provision notifying Juanita that:
"All conditions of the dispositional order/consent decree remain
in effect," but the court did not attach the separate TPR
warnings. Juanita appeared for another hearing on September 6,
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No. 2014AP2431
2012, where the circuit court again gave her oral TPR warnings.
On September 11, 2012, the circuit court issued another
extension order, which contained the same language noted above:
"All conditions of the dispositional order/consent decree remain
in effect" but it did not attach separate TPR warnings.
¶9 St. Croix County first filed a TPR petition as to
Matthew in January of 2013, but it was dismissed without
prejudice on June 12, 2013 because the prosecutor inadvertently
failed to appear for the pre-trial hearing. On June 18, 2013,
St. Croix County filed a second TPR petition seeking to
terminate Juanita's parental rights based on continuing CHIPS
under Wis. Stat. § 48.415(2), and failure to assume parental
responsibility under Wis. Stat. § 48.415(6). On September 4,
2013, the circuit court issued another extension order, which
contained the same language noted above: "All conditions of the
dispositional order/consent decree remain in effect" but it did
not attach separate TPR warnings.7
7
In her brief, Juanita emphasizes the numerous written
orders in this case: "There were 27 written orders in Matthew's
CHIPS case[.]" We note that only 4 of the 27 written orders
were CHIPS orders requiring written notice under Wis. Stat.
§ 48.356(2). Juanita also emphasizes that there were ten CHIPS
court hearings in this case. We note that seven of those ten
hearings required oral TPR warnings under Wis. Stat. § 48.356(1).
Juanita received oral warnings at three of the seven hearings.
The deficiencies of these notices and warnings under § 48.356 in
Matthew's CHIPS case do not affect our holding that Juanita
received sufficient notice in this TPR case because the TPR
statute based on continuing CHIPS grounds requires proof only
that the written notice under § 48.356(2) be given in one or more
of the CHIPS orders.
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No. 2014AP2431
¶10 The fact-finding hearing, tried to the court, occurred
in December 2013. After St. Croix County presented its case,
Juanita moved the circuit court to dismiss the TPR petition,
arguing failure of proof on the elements and inadequate notice
contrary to Wis. Stat. § 48.415(2) and Wis. Stat. § 48.356. The
circuit court denied both motions. With respect to the notice
issue, the circuit court ultimately ruled Steven H. did not
establish an unequivocal "last order, plus six-months rule."
Instead, it held that "substantial compliance" with the notice
statute was sufficient. It reached this conclusion based on
Steven H.'s emphasis on the legislative purpose of the
Children's Code, the court of appeals' interpretation of Steven
H. in Waushara County v. Lisa K., 2000 WI App 145, 237 Wis. 2d
830, 615 N.W.2d 204, and Steven H.'s discussion that the purpose
of the notice statutes "is meant to ensure that a parent has
adequate notice of the conditions with which the parent 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." Steven H., 233 Wis. 2d 344, ¶37. The circuit court
then found the notice given to Juanita sufficient to comply with
the statutes:
[Notice to Juanita] was sufficient under § 48.356(2)
to inform her that her parental rights were in danger
of being terminated and advising her of the conditions
necessary for the return of the child. Although only
one TPR warning was written, this Court finds it is
not fatal that the 2012 extension order did not
contain written TPR warnings. From the date of the
October 5, 2011, extension hearing, [Juanita] appeared
before the court, with counsel, on at least ten
8
No. 2014AP2431
different occasions related to this matter. She was
given a written TPR warning on October [11], 2011, and
given oral TPR warnings on three occasions including:
October 5, 2011, December 12, 2011, and September 6,
2012. Less than five months after the September 6,
2012, TPR warnings were given, the first [TPR]
Petition . . . was filed. The current [TPR] Petition
. . . was filed less than one year after the September
6, 2012, hearing. The number and frequency of the
court proceedings, in addition to four occasions since
October 5, 2011, [Juanita] was orally given TPR
warnings, lead this Court to conclude that she had
sufficient notice under § 48.356(2). [Juanita] had
notice of the conditions required of her for the child
to return to her care and that her legal rights were
in jeopardy if she did not meet those conditions.
¶11 Further, the circuit court rejected Juanita's claim
that she was "confused" about whether termination was looming:
This Court has noted the number and frequency of the
[CHIPS] proceedings . . . as well as the number of
warnings, both oral and written, she was given in the
two years prior to the filing of the current Petition.
In addition, she has had full representation
throughout [the CHIPS proceedings] and these present
proceedings, and has not raised, through counsel or
personally, any issue of confusion with regard to the
obligations, conditions, or consequences until now.
¶12 The circuit court found grounds existed on the
continuing CHIPS allegation, but that St. Croix County failed to
prove Juanita had not assumed parental responsibility for
Matthew. The circuit court found Juanita unfit to parent
Matthew and the case proceeded to a dispositional hearing. At
the conclusion of the dispositional hearing, the circuit court
found it was in Matthew's best interests to terminate Juanita's
parental rights. The circuit court entered the order
terminating Juanita's parental rights in May 2014.
9
No. 2014AP2431
¶13 Juanita appealed to the court of appeals, which
reversed the circuit court and remanded "for vacation of the
termination order and dismissal of the termination of rights
petition." St. Croix Cnty. DHHS v. Michael D., No. 2014AP2431,
unpublished slip op., ¶1 (Wis. Ct. App. Jan. 16, 2015). Citing
Steven H., the court of appeals ruled that because the last
order Juanita received did not contain written notice warning
her about termination, St. Croix County failed to establish the
notice element required under Wis. Stat. § 48.415(2)(a)1. St.
Croix Cnty. DHHS v. Michael D., No. 2014AP2431, unpublished slip
op., ¶16 (Wis. Ct. App. Jan. 16, 2015).
II. ANALYSIS
¶14 This appeal involves issues relating to the
involuntary termination of parental rights, under Chapter 48 of
the Wisconsin Statutes, the Children's Code. Wisconsin Stat.
§ 48.417 requires the authorized agency to file a petition to
terminate parental rights under certain circumstances including
when: "[t]he child has been placed outside of his or her
home . . . for 15 of the most recent 22 months" and "the
petition shall be filed . . . by the last day of the 15th
month . . . the child was placed outside of his or her home."
Wis. Stat. § 48.417(1)(a). Wisconsin Stat. § 48.415 sets forth
the grounds for termination, including "Continuing need of
protection or services," which provides in relevant part:
Grounds for involuntary termination of parental
rights. At the fact-finding hearing the court or jury
shall determine whether grounds exist for the
termination of parental rights. . . . Grounds for
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No. 2014AP2431
termination of parental rights shall be one of the
following:
. . .
(2) Continuing need of protection or services.
Continuing need of protection or services, which shall
be established by proving any of the following:
(a) 1. 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 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. a. In this subdivision, "reasonable effort"
means an earnest and conscientious effort to take good
faith steps to provide the services ordered by the
court which takes into consideration the
characteristics of the parent or child or of the
expectant mother or child, the level of cooperation of
the parent or expectant mother and other relevant
circumstances of the case.
b. That 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. That 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 that 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)1.-3.
A. Notice
¶15 The first issue is whether the written notice
requirements under Wis. Stat. § 48.415(2)(a)1. were satisfied.
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No. 2014AP2431
This issue requires statutory interpretation, which is a
question of law that we review de novo. Shannon E.T. v. Alicia
M. V.M., 2007 WI 29, ¶31, 299 Wis. 2d 601, 728 N.W.2d 636. Our
standards for interpreting statutes are well-known and need not
be repeated here. See State ex re. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
¶16 The language of Wis. Stat § 48.415(2)(a)1. requires
St. Croix County to prove Matthew "has been adjudged to be a
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
s. 48.356(2)." (Emphasis added.) Wisconsin Stat. § 48.356
requires the circuit court to give oral and written warnings to
parents whose children are placed outside their home "of any
grounds for termination of parental rights under s. 48.415 which
may be applicable." Section 48.356 provides in full:
Duty of Court to Warn. (1) Whenever the court orders a
child to be placed outside his or her home, orders an
expectant mother of an unborn child to be placed
outside of her home, or denies a parent visitation
because the child or unborn child has been adjudged to
be in need of protection or services under s. 48.345,
48.347, 48.357, 48.363, or 48.365 and whenever the
court reviews a permanency plan under s. 48.38(5m),
the court shall orally inform the parent or parents
who appear in court or the expectant mother who
appears 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 or expectant mother to be returned to the home
or for the parent to be granted visitation.
(2) In addition to the notice required under sub. (1),
any written order which places a child or an expectant
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No. 2014AP2431
mother outside the home or denies visitation under
sub. (1) shall notify the parent or parents or
expectant mother of the information specified under
sub. (1).
Subsection (1) sets forth the required oral warnings and
subsection (2) sets forth the required written warnings. Only
subsection (2) is referenced in the TPR based on continuing
CHIPS statute.
¶17 We begin by emphasizing that this is a TPR case, not a
CHIPS case. Therefore, the case is governed by Wis.
Stat. § 48.415(2)——a TPR statute. Section 48.415(2) makes the
written notice in the CHIPS statute, Wis. Stat. § 48.356(2), an
element to prove in a TPR case grounded in continuing CHIPS to
ensure that a parent whose rights are being terminated has——at
least one time——received written notice to that effect. The
language of the TPR statute does not specifically mention the
last order, the first order or use the term every order.
Rather, it references one or more of the court's written orders
notifying a parent of applicable grounds for termination of
parental rights.8 We are not at liberty to disregard the plain
8
We are confident that applying the plain language of Wis.
Stat. § 48.415(2) will not result in our circuit courts ignoring
the notice requirement in CHIPS cases under Wis. Stat. § 48.356.
Based on Wis. Stat. § 48.356(2)'s requirement that "any written
order which places a child . . . outside the home . . . shall
notify the parent or parents" of potential TPR grounds and
conditions necessary for a child to be returned to the home,
parental rights and notice requirements will not be diluted by
our decision in this case.
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No. 2014AP2431
words of the statute and we will not attempt to improve the
statute by adding words not chosen by the legislature. It is
undisputed that the October 11, 2011 written order contains the
statutorily prescribed termination of parental rights warnings.
Thus, the statutory requirement was satisfied in this case
because one order——the October 11, 2011 order——included the
written TPR notice warning Juanita that her parental rights to
Matthew were in jeopardy.
¶18 We could end our analysis here but for the fact that
Steven H. has created a question in the court of appeals and
circuit courts as to whether Steven H. created a bright-line
rule requiring that the last order in a CHIPS case contain the
written notice in order to satisfy Wis. Stat. § 48.415(2)(a)1.
Courts, including the circuit court in the instant case, are
ruling different ways on this question. As we have seen here,
this circuit court, faced with the factual scenario where a
parent had adequate notice despite the last order not containing
the Wis. Stat. § 48.356(2) warnings, concluded the elements for
termination based on continuing CHIPS were satisfied because one
order had the written warnings attached. This circuit court,
faced with a choice between the plain language of Wis.
Stat. § 48.415(2) requiring only one order and two conflicting
sentences in Steven H. about the last order, chose to apply the
plain language of the statute.
¶19 The court of appeals, in Lisa K., 237 Wis. 2d 830, ¶13
reached a similar conclusion. In Lisa K., the last extension
order before the TPR filing did not contain the notice required
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No. 2014AP2431
by Wis. Stat. § 48.356(2), but the previous dispositional orders
contained the requisite notice. Lisa K., 237 Wis. 2d 830, ¶2.
After discussing Steven H., the court of appeals rejected Lisa
K.'s argument that Steven H. created a last order, six-months
rule. Id., ¶¶5-6. Rather, the court of appeals held that
"notice and adequate information were the dispositive factors in
CHIPS notices which are followed by termination of parental
rights proceedings," id., ¶8, and therefore, as long as a parent
"had more than adequate notice of what was expected of her for
the return of her children to her, and was more than adequately
forewarned that her parental rights were in jeopardy . . . it is
not relevant . . . that the final order . . . did not contain"
all the notice requirements of § 48.356(2). Lisa K., 237
Wis. 2d 830, ¶10.
¶20 Additional cases demonstrate the factual variations
that arise in TPR cases and how the courts have reached
differing decisions based on Steven H. See State v. Amelia A.,
Nos. 2015AP630-31, unpublished slip op., ¶¶1-2 (Wis. Ct. App.
June 9, 2015)(affirming termination of parental rights where
August 2012 order contained statutory notices but August 2013
order did not; held that because TPR petition was filed in
November 2013, which was less than six months after August 2013
order, August 2012 order controls decision); Portage Cnty. DHHS
v. Julie G., No. 2014AP1057, unpublished slip op., ¶¶20-21
(acknowledging Steven H. last order, six-months rule); Walworth
Cnty. DHHS v. Jeanna R., No. 2009AP1952, unpublished slip op.,
¶17 (Wis. Ct. App. Nov. 11, 2009)(same); Dunn Cnty. DHSS v.
15
No. 2014AP2431
Debra O., Nos 2008AP17715077, unpublished slip op., ¶15 (Wis.
Ct. App. Jan. 9, 2009)(citing Steven H. for the proposition “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.”); Pierce Cnty. v.
Amy F., No. 2004AP1552, unpublished slip op., ¶¶7-10 (Wis. Ct.
App. Aug. 31, 2004)(where parent received required notice with
first CHIPS order, Steven H. does not support her claim that
failure to receive the last order with identical warnings as the
first order requires dismissal); see also Comment, Wis JI—
Children 324A ("The Committee believes that Wis. Stat.
§ 48.415(2) requires only that the last order placing the
child/children outside the home contain the written warnings
regarding the termination of parental rights.").
¶21 Thus, some courts read Steven H. to say the statutory
notice must be in the last order filed six months before the
TPR. Others read Steven H. to say as long as the parent has
adequate notice of the conditions required for return of the
child and sufficient warning that parental rights are in
jeopardy, the last order need not contain the notices required
in Wis. Stat. § 48.356(2). As a result, some courts are not
following the plain language of the statute, which requires that
to prove continuing CHIPS as a TPR ground, the State must prove
the parent received "one or more" orders containing the required
notice.
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No. 2014AP2431
¶22 Today, we clarify our decision in Steven H. The issue
in Steven H. as it relates to the present case was whether Wis.
Stat. §§ 48.415(2) and 48.356(2), in a TPR case based on the
continuing CHIPS ground, "require that each and every order
placing a child outside his or her home contain the written
notice prescribed by § 48.356(2) in order for the termination of
parental rights to proceed." Steven H., 233 Wis. 2d 344, ¶2,
¶16. The answer to that question was and remains no. We
reached that answer by applying the language of both statutes,
cognizant of the legislative purposes expressed in the
Children's Code. We noted the legislature used "one or more
court orders" in § 48.415(2) but "any order" in § 48.356(2). We
examined in depth the expressed legislative purposes set forth
in the Children's Code in Wis. Stat. § 48.01(1), which directs
"that courts act in the best interests of a child, that courts
avoid impermanence in family relations and that courts eliminate
the need for children to wait unreasonable periods of time for
their parents to correct the conditions that prevent their
return to the family." Steven H., 233 Wis. 2d 344, ¶36. Based
on these considerations, we held that even though Steven H.
received the statutorily prescribed notice in only one written
order (the last order before the TPR petition was filed), this
satisfied the statutes because the notice served its dual
purpose of (1) "ensur[ing] that a parent has adequate notice of
the conditions with which the parent must comply for a child to
be returned to the home"; and (2) "forewarn[ing] parents that
their parental rights are in jeopardy." Id., ¶37.
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No. 2014AP2431
¶23 We explained in Steven H. that interpreting the
different terminology in Wis. Stat. § 48.415(2) ("one or more
court orders") and Wis. Stat. § 48.356(2)("any order") as the
appellant parent requested would frustrate the important goals
of the Children's Code:
If the court interprets the statutes as Steven H.
requests, [the child] would likely remain in the
impermanence of foster care for many more months until
the alleged defects in [the deficient orders] could be
cured. This interpretation is not required by the
words of Wis. Stat. § 48.356(2) and Wis.
Stat. § 48.415(2). Furthermore, this interpretation
is contrary to the express legislative policy of the
Children's Code that courts act in the best interests
of a child, that courts avoid impermanence in family
relations and that courts eliminate the need for
children to wait unreasonable periods of time for
their parents to correct the conditions that prevent
their return to the family. Wis. Stat. § 48.01(1)(a).
Steven H., 233 Wis. 2d 344, ¶36. As the circuit court here
observed, this case has been pending since April 2009.
Dismissing the petition because the last order did not have the
requisite warnings despite compliance with the "one or more"
language of the TPR statute, runs contrary to the purpose of the
Children's Code. It also would cause us to reject and abandon
the extensive and thoughtful analysis in Steven H. about the
purposes for the Children's Code, which resulted in the Steven
H. holding: "that Wis. Stat. § 48.356(2) and 48.415(2) do not
require that each and every order removing a child from his or
her home contain the written notice prescribed by § 48.356(2) in
order for the termination of parental rights to proceed."
Steven H., 233 Wis. 2d 344, ¶3.
18
No. 2014AP2431
¶24 The plain language of § 48.415(2) requires that in a
TPR case where the underlying ground to terminate is based on
continuing CHIPS, the statutory notice requirements are
satisfied when at least one of the CHIPS orders contains the
written notice required under § 48.356(2). In Steven H., the
last order satisfied this requirement. In Juanita's case, the
October 11, 2011 order satisfied this requirement.9 Accordingly,
we make clear today that Steven H. did not create a bright-line
"last order, six-months" rule and we withdraw the language in
Steven H. creating that suggestion. See supra nn.3-4.
¶25 Although bright-line rules are helpful in practice, we
cannot change the language of this statute, but must apply the
statutory words chosen by the legislature. The language of Wis.
Stat. § 48.415(2) is not ambiguous; it is very clear——only one
9
We also note that in addition to the one written notice,
Juanita also received three oral warnings from the circuit court
at three separate hearings: October 5, 2011, December 12, 2011,
and September 6, 2012 (which was less than five months before
the first petition to terminate was filed). Further, Juanita
had just a few months earlier gone through a separate TPR for
her other son, Henry, where her parental rights were terminated;
moreover, Juanita was represented by counsel throughout all
proceedings. The circuit court made a specific factual finding
that despite the non-compliant September 11, 2012 order, Juanita
did in fact receive sufficient notice and understood both the
conditions necessary for return and the consequences for failing
to meet those conditions. The record demonstrates Juanita had
adequate notice that her parental rights to Matthew were in
jeopardy.
Further, we are not persuaded by Juanita's contention she
was confused. The circuit court found that Juanita was not
confused, and we see nothing to suggest that finding was clearly
erroneous.
19
No. 2014AP2431
or more of the written notices required under Wis. Stat.
§ 48.356(2) must be proven in a TPR case based on continuing
CHIPS. The legislature does not explain why it used "one or
more" in the TPR statute, but used "any" in the CHIPS statute.
This does not, however, change our analysis. The legislature
used "one or more" in § 48.415(2) and that is the language we
must apply in this TPR case.
¶26 Our holding does not alter the statutory duty of the
circuit court in CHIPS proceedings under Wis. Stat. § 48.356,
whenever the court orders a child to be placed outside his or
her home, to (1) orally warn parents who appear in court of any
grounds for termination of parental rights which may be
applicable and (2) include written notice of such grounds in any
written orders for such out-of-home placement. These procedures
effectuate another express legislative purpose set forth in Wis.
Stat. § 48.01(ad) of assuring that parents' "constitutional and
other legal rights are recognized and enforced." However, the
legislature has not incorporated these mandates into the
elements necessary to prove a continuing CHIPS ground in a TPR
action under Wis. Stat. § 48.415(2). Accordingly, under a plain
reading of the text of § 48.415, a TPR action based on
allegations of continuing CHIPS is not precluded solely by
noncompliance with § 48.356 in CHIPS proceedings, provided the
elements of continuing CHIPS are proven.
¶27 Although Juanita's case does not involve an issue as
to the six-months rule referenced in Steven H., we address it
for clarity. Wisconsin Stat. § 48.415(2) does not say the
20
No. 2014AP2431
agency seeking a TPR must wait to file until six months after
the last CHIPS dispositional order or extension thereof; rather,
§ 48.415(2)'s only reference to six months comes in Wis. Stat.
§ 48.415(2)(a)3., which provides that the agency seeking
termination must prove: "That the child has been outside the
home for a cumulative total period of 6 months or longer
pursuant to such orders." There is no language stating the "6
months" must be after the last CHIPS dispositional order or
extension; rather, the "6 months" is a "cumulative total period"
under the CHIPS orders. Any other interpretation would require
reading language into the statute that does not exist and
unnecessarily delays permanency. Accordingly, we also withdraw
any language in Steven H. suggesting the agency must wait six
months after the last out-of-home placement order is issued
before filing a TPR petition.
B. Sufficiency of the Evidence10
¶28 The second issue is whether there was sufficient
evidence to meet the other elements of the continuing CHIPS
10
Although sufficiency of the evidence was not raised in
the petition for review, we elect to address it in the interest
of efficiency. See State v. Johnson, 153 Wis. 2d 121, 126, 449
N.W.2d 845 (1990)(When decision on "issue for which the court
accepted the petition for review" results in need to decide a
second issue, we may elect to decide the second issue.); Chevron
Chem. Co. v. Deloitte & Touche, 176 Wis. 2d 935, 945, 501 N.W.2d
15 (1993)("[O]nce a case is before us, we have discretion to
review any substantial and compelling issue the case
presents.").
21
No. 2014AP2431
ground for TPR under Wis. Stat. § 48.415(2)(a). The elements
are:
(1) The child has been adjudged CHIPS and placed or
continued in placement outside his or her home
pursuant to one or more CHIPS orders containing the
statutorily prescribed notice; § 48.415(2)(a)1.,
(2) The responsible agency "made a reasonable effort
to provide the services ordered by the
court"; § 48.415(2)(a)2.,
(3) The child has resided outside the home "for a
cumulative total period of 6 months or longer" under
CHIPS order(s); § 48.415(2)(a)3., and
(4) "[T]he 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." § 48.415(2)(a)3.
St. Croix County had the burden to prove all four elements by
clear and convincing evidence.
¶29 Our standard of review in a challenge to the
sufficiency of the evidence is whether there is any credible
evidence to sustain the verdict. Sheboygan Cnty. DHHS v. Tanya
M.B., 2010 WI 55, ¶49, 325 Wis. 2d 524, 785 N.W.2d 369. Under
this standard, we conclude the evidence was sufficient.
¶30 First, as already discussed above, there is credible
evidence to show St. Croix County satisfied the first element——
the notice element. It is undisputed that Matthew was a child
in need of protection or services placed outside his home under
CHIPS orders and one of those orders——the October 11, 2011
order——contained the written notice prescribed by statute.
22
No. 2014AP2431
¶31 Second, there is credible evidence to show St. Croix
County made reasonable efforts to provide Juanita services
ordered by the court. Wisconsin Stat. § 48.415(2)(a)2. defines
"reasonable effort" as "an earnest and conscientious effort to
take good faith steps to provide the services ordered by the
court which takes into consideration the characteristics of the
parent or child . . . , the level of cooperation of the
parent . . . and other relevant circumstances of the case." The
trial court found St. Croix County "did make reasonable efforts
to provide services ordered by the court." There is credible
evidence both in the testimony at the fact-finding hearing in
this case and in the CHIPS file to support this element.
¶32 Dina Williams testified that she is employed by St.
Croix County as a child protection social worker and worked with
Juanita since Matthew was initially removed from the home when
he was eight days old. Williams explained the efforts St. Croix
County made to provide services to Juanita:
We've had a coordinated family services team, a
community support team. Juanita's had an individual
therapist, three different individual therapists at
minimum. She's had a mental health worker, a
psychiatrist that monitors her medications. We have
provided respite services, transportation in way of --
whether it be a gas card or taking her to and from
places if needed, as well as for Matthew. There's
personal care workers for both Juanita and for John.
Again, the Birth to 3, early Head Start. He's had
early childhood. Now he's in the 4K and preschool
program.
Williams testified that since Matthew was removed in 2011,
Juanita received twice-a-week and then three-times-a-week
23
No. 2014AP2431
supervised visits from St. Croix County employees who
transported Matthew to Juanita's home, offered parenting and
safety suggestions during the visits, and provided any other
help Juanita needed. One of those employees, Ann Larson, a
program aide at St. Croix County Family and Children's Services
Department, testified that she tried to help Juanita learn
better parenting skills by making suggestions with respect to
proper food portions, talking to Juanita about safety concerns
such as pill bottles within Matthew's reach, getting a lock on
the gate in the yard, and fixing a large gap in the gate that
Matthew could slip through and escape from the yard. Larson
also testified she was there to provide resources for Juanita,
but Juanita had not asked for any help to improve her parenting
skills.
¶33 Dawn Noll, another St. Croix County program aide,
testified that she worked with Juanita for seven years, offering
parenting suggestions and providing transportation. After
Matthew was removed from Juanita's home, Noll transported
Matthew back and forth for weekly supervised visits with
Juanita, and helped Juanita with parenting. Juanita testified
she had a personal care worker assigned by the County who came
two hours a day on Monday, Tuesday, Thursday, Friday and every
other Saturday to help Juanita bathe and do household chores.
Williams testified: "We have exhausted all services that we can
possibly think of or that are available to us or to the family."
Collectively, this testimony is sufficient to demonstrate that
24
No. 2014AP2431
St. Croix County made reasonable efforts to provide services to
Juanita.
¶34 Third, it is not disputed that Matthew was outside his
home for more than six months. He was removed in July 2011 and
never returned. The TPR petition was filed in June 2013.
Matthew was outside the parental home for much longer than the
required "cumulative period of six months."
¶35 Fourth, there is credible evidence establishing
Juanita's failure to meet the conditions necessary for Matthew's
safe return to Juanita's home. The circuit court imposed 14
conditions:
(1) Juanita shall demonstrate the ability to
supervise Matthew at all times.
(2) Juanita shall demonstrate the ability to provide,
enforce and follow through with age appropriate
discipline techniques with Matthew, when
necessary.
(3) Juanita shall continue to learn parenting skills
with the Parent Aide with St. Croix County Family
& Children's and demonstrate the ability to use
these skills.
(4) Juanita shall provide a structured routine,
including but not limited to, meals, naps,
bedtime, bathing, etc., for Matthew and follow
through with this routine.
(5) Juanita shall keep her home free of all safety
hazards that may endanger Matthew's health and/or
safety, out of his reach including, but not
limited to, all sharp objects, food that has been
out longer than 2 hours, raw meat, heavy objects
that are at risk of falling on or near Matthew,
plastic bags, hangers, electric cords, electric
outlets, and medications, and will demonstrate
the ability to follow through.
25
No. 2014AP2431
(6) Juanita shall learn and practice basic
housekeeping skills and basic home management
skills which will also help in keeping the home
free from safety hazards.
(7) Juanita shall demonstrate the ability to keep
Matthew safe while playing outside by following
him where he is playing, holding his hand when
walking to different areas and staying within 10
feet or less of him in non-enclosed settings.
(8) Juanita shall follow through with Birth to 3,
Early Head Start and Speech Therapy
recommendations when it comes to teaching Matthew
verbal skills and having Matthew use his words to
enhance his speech and communications skills.
Juanita will demonstrate this ability without the
assistance, guidance or support of other
individuals.
(9) Juanita shall follow through with all
recommendations made by her physicians when it
pertains to her physical health and well-being.
Juanita shall follow through with basic hygiene
and self-care techniques to improve overall basic
functioning and health.
(10) Juanita shall sign any and all releases deemed
necessary and appropriate by the Department.
This includes releases to be signed for the
social Worker to discuss Juanita's health and
well-being with her various health care
providers. These will be signed at the time
requested. If a request is deemed by Anita to be
unreasonable the court shall be notified for a
review hearing to be scheduled as soon as
possible.
(11) Juanita shall not have any other individuals
living with her (aside from her eldest son, John
or her sister, Julie) without permission of the
social worker and GAL.
(12) Warnings for Termination of Parental Rights shall
be administered to Juanita.
26
No. 2014AP2431
(13) Juanita shall meet with the assigned social
worker as deemed necessary and appropriate and
will also acknowledge unannounced home visits.
(14) In all other respects, the current CHIPS Court
Order recommendations are still in effect and
will continue to be followed.
¶36 Although we agree with Juanita that she was able to
meet some of these conditions, the record contains credible
evidence establishing that she failed to meet all of them.
Williams testified Juanita attempted to meet the conditions for
return, but "she's not able to complete all of them on a
consistent basis." Williams explained:
 Juanita "has not demonstrated the ability to
supervise Matthew at all times without the
assistance of others. She has not been able to
demonstrate the ability to provide, enforce, and
follow through with age-appropriate discipline
techniques with--at all times on her own without
assistance. She does at times, but not always."
Juanita's focus is frequently on arguing with her
older son and "Matthew is often just lost in the
shuffle" leaving Matthew unsupervised.
 Juanita's parenting skills have improved, but she
does not have "the ability to use these skills" "on
a consistent and ongoing basis."
 Juanita typically does not have a structured plan
for the visits.
 Juanita's ability to make her home safe has
improved, "but there continues to be incidents
where, again, medications have been left out. This
is something I have repeatedly talked to Juanita
about." When playing outside, "the gate [is] not
properly latched, if latched at all."
 With regard to the condition to keep a clean home,
Juanita cannot do this on a consistent basis. "She
needs reminders" "continuous reminders on [how] to
keep the house clean." The floor was "filthy,"
27
No. 2014AP2431
there were dirty dishes "from last night's meal
still out on the counter, food, dishes in the living
room," dirty laundry, and the bathroom was so dirty
Matthew did not want to use it.
 Juanita is "often sitting when [Matthew's] off
playing" and not within the ten-feet required by the
conditions to keep him safe.
 Juanita keeps up with the early education and speech
requirements but only because she is reminded to do
so. Once reminded, Juanita will "make the effort to
do it for a short period of time, but it doesn't
continue as an ongoing basis."
 Juanita has rescinded all of her medical releases
and will not allow any contact with her personal
physicians or her "protective payee in regards to
her financial situation and whether or not she is
able to financially support herself and her
children."
Williams' testimony provides credible evidence to establish
Juanita's failure to meet the conditions.
¶37 There was also credible evidence demonstrating a
substantial likelihood that Juanita would not meet the imposed
conditions within the nine-month period following the fact-
finding hearing. Williams testified that Juanita would not be
able to comply with the conditions for return within the nine
months following the hearing and that: "We have exhausted all
services that we can possibly think of or that are available to
us or to the family." St. Croix County Department of Social
Services worked with Juanita since Matthew was eight days old.
It provided her with significant support for years, yet Juanita
could not consistently demonstrate an ability to properly
supervise Matthew or maintain a safe home for Matthew. Williams
testified that Juanita would be able to exhibit the parenting
28
No. 2014AP2431
skills she had been taught for at most one month "before she
goes back to the old behaviors." There was nothing to show that
Juanita could accomplish in another nine months what she was
unable to do in the prior four and a half years. Thus, credible
evidence supports this element.
III. CONCLUSION
¶38 We hold that the notice Juanita received satisfied the
statutory notice element of a TPR action grounded in continuing
CHIPS set forth in Wis. Stat. § 48.415(2). The notice required
under Wis. Stat. § 48.356(2)(a)1. was satisfied with the written
October 11, 2011 order. In a TPR case based on the continuing
CHIPS ground, Wisconsin Stat. § 48.415(2) does not require proof
that notice was given in every CHIPS order removing a child from
the home or extension thereof; it also does not require proof
that notice was in the last CHIPS order. Rather, it requires
proof that one or more of the CHIPS orders removing a child from
the home, or extension thereof, contain the written notice
required under § 48.356(2).
¶39 We further hold that Steven H. did not establish an
unequivocal "last order, plus six-months rule." Wisconsin Stat.
§ 48.415(2) does not use the term last order; rather, the
legislature chose to use the phrase "one or more." Accordingly,
if "one or more" of the CHIPS orders in a TPR case contains the
statutorily prescribed written notice, regardless of whether it
was the first, last, or any order in between, such notice
satisfies the phrase "one or more." Likewise, the statutes do
not require that six months must pass after the last CHIPS order
29
No. 2014AP2431
before a TPR petition can be filed. Rather, the relevant
statute requires proof that a child was "outside the home for a
cumulative total period of 6 months or longer." Wis. Stat.
§ 48.415(2)(a)3. We do not overrule Steven H. It remains good
law except that we withdraw our conflicting sentence in
paragraph 3 and clarify the last sentence in paragraph 31. See
supra ¶2, ¶4 nn.3-4, & ¶¶18-25, ¶27.
¶40 We also hold that the record contains credible
evidence sufficient to establish continuing CHIPS as a ground
for terminating Juanita's parental rights. The record contains
credible evidence showing: Matthew was adjudged CHIPS and
placed outside Juanita's home pursuant to one or more CHIPS
orders containing the statutorily prescribed written notice; St.
Croix County made reasonable efforts to provide services to
Juanita; Matthew resided outside of Juanita's home for longer
than six months; Juanita failed to meet all of the conditions
required for his return; and there was a substantial likelihood
that Juanita would not meet those conditions within the nine
months following the fact-finding hearing. Accordingly, we
reverse the court of appeals' decision and affirm the circuit
court's order terminating Juanita's parental rights to Matthew.
By the Court.—The decision of the court of appeals is
reversed.
30
No. 2014AP2431.pdr
¶41 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I
fully join the majority opinion. However, I write in
concurrence to address what appears to be Justice Shirley
Abrahamson's practice of lending the prestige of her judicial
office to further private interests.
¶42 Justice Abrahamson says she writes to "compare Justice
Rebecca G. Bradley's public approach to the role of a new
justice in deciding cases argued and pending on her appointment
and the approach taken in the past in this court and in the
United States Supreme Court regarding the role of a new
justice."1 However, an examination of what she says in her three
separate writings, when combined with what she does not tell
readers of those separate writings, evidences that she is
engaged in a different pursuit.
¶43 Justice Abrahamson's writings repeatedly omit
important facts well known to her; they are attached to court
decisions in which her assaults on Justice Rebecca Bradley are
not relevant to legal issues presented to the court for
decision; and this is the third opinion since December 18, 2015,
in which she has attacked Justice Rebecca Bradley by implying
that her decisions about when to participate in cases pending
before the court are improper.
¶44 Therefore, as Chief Justice of the Wisconsin Supreme
Court, I write to provide transparency by setting out important
1
Justice Abrahamson's dissent, ¶136.
1
No. 2014AP2431.pdr
facts known to Justice Abrahamson, which she has chosen to omit
from her writings in three cases.
¶45 A brief narration of relevant historic facts is
necessary to understand my concerns. On September 17, 2015 and
September 18, 2015, Justice N. Patrick Crooks did not attend
oral argument in six cases that were argued on those two days.
He watched oral argument on WisconsinEye and then participated
in our decision conferences by telephone. As arguments began on
September 17 and again on September 18, I told counsel that
Justice Crooks would be absent from oral argument, but would
participate in the decision conference by phone.
¶46 The court reached tentative decisions in five of the
six cases argued. Justice Crooks would have participated in the
released opinions of all cases that were tentatively decided if
his death had not intervened.2
¶47 On September 17, we heard oral argument in St. Croix
County, the case now before us. Justice Abrahamson asserts that
Justice Rebecca Bradley is "[t]aking a different and contrasting
approach to this prior precedent."3 However, Justice Abrahamson
2
Justice Abrahamson asserts, "There is precedent in this
court for a member of the court to do as Justice Crooks
explained he would do." Justice Abrahamson's dissent, ¶141
n.53.
If there is "precedent" that was created by other justices'
absences from oral argument and subsequent participations in the
decision conference by phone as Justice Abrahamson asserts, it
is not noted in our opinions. This absence is reasonable
because the manner in which a justice participates has nothing
to do with issues presented to the court for review.
3
Justice Abrahamson's dissent, ¶147.
2
No. 2014AP2431.pdr
knows that Justice Crooks participated in St. Croix County in
very much the same manner as Justice Rebecca Bradley has: both
listened to oral argument on WisconsinEye and both participated
in the decision conference, Justice Crooks by phone and Justice
Rebecca Bradley in person when the court held a second decision
conference. Furthermore, Justice Rebecca Bradley's decision to
participate in St. Croix County is not a legal issue presented
to the court for resolution in St. Croix County.
¶48 Twice before, once in a dissent and once in a
concurrence, Justice Abrahamson omitted important facts known to
her and in so doing, through the facts that she did relate, she
drew into question the propriety of Justice Rebecca Bradley's
decisions about whether to participate in pending cases. The
repetitive nature of her omissions of known facts heightens my
concern.
¶49 For example, in her dissent in State v. Matalonis,
2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567, Justice Abrahamson
said, "the court heard oral argument in the instant case
[Matalonis] and eight other cases. Justice N. Patrick Crooks
participated in these nine cases."4 Justice Abrahamson asserted
that Justice Rebecca Bradley's "participation in those cases
without a reargument appear[s] to be internally inconsistent and
inconsistent with the court's prior practice."5
4
State v. Matalonis, 2016 WI 7, ¶73, 366 Wis. 2d 443, 875
N.W.2d 567 (Abrahamson, J., dissenting)
5
Id., ¶82.
3
No. 2014AP2431.pdr
¶50 When she wrote her dissent in Matalonis implying
impropriety in Justice Rebecca Bradley's participation because
the court did not hold another oral argument, Justice Abrahamson
knew that Justice Crooks did not participate in oral argument in
Matalonis because she knew that he did not attend oral arguments
on September 18. Nevertheless, Justice Abrahamson did not
disclose to readers of Matalonis that Justice Crooks watched
oral argument on WisconsinEye, just as Justice Rebecca Bradley
has, and that his involvement in the decision conference was by
telephone, while Justice Rebecca Bradley personally participated
in a subsequent decision conference. Justice Abrahamson also
did not disclose to readers of Matalonis that the court has no
prior practice to follow when a justice joins the court mid-
term.6 And finally, Justice Rebecca Bradley's decision to
participate in Matalonis is not relevant to deciding the legal
issues presented by that case.
¶51 Justice Abrahamson's omissions have caused at least
one reader to question Justice Rebecca Bradley's decision to
6
The last death that occurred during a court term was that
of Justice Horace Wilkie, who died May 23, 1976. Although
Justice Abrahamson was appointed to replace him, she did not
join the court mid-term as Justice Rebecca Bradley has. Rather,
she began September 7, 1976, at the beginning of the court's
term.
4
No. 2014AP2431.pdr
participate in Matalonis, claiming that her participation
violated Matalonis's rights of due process and equal protection.7
¶52 The first time Justice Abrahamson made allegations
about Justice Rebecca Bradley's participation was in her
concurrence to New Richmond News v. City of New Richmond, 2015
WI 106, 365 Wis. 2d 610, 875 N.W.2d 107, which was argued
September 18. There, she wrote, "Prior to September 21, 2015
[the date of Justice Crooks' death], the court heard oral
argument in nine cases. Justice N. Patrick Crooks
participated."8 Once again, when she issued her concurrence in
New Richmond News, Justice Abrahamson knew that Justice Crooks
did not participate in oral arguments for all of those cases
because six cases were argued on September 17 and September 18
when Justice Crooks was absent from oral argument. She also
knew that the court did not reach a tentative decision in New
Richmond News at the decision conference on September 18 because
she refused to vote, held the case and voted for the first time
after Justice Crooks' death.
¶53 Omitting important facts known to her at the time of
her writings permits Justice Abrahamson to imply that by
deciding to participate in St. Croix County and Matalonis, and
7
The author of the motion for reconsideration states that
"Justice Shirley S. Abrahamson provides much of the background
of facts and circumstances pertinent to Matalonis' motion for
reconsideration in her dissenting opinion, State v. Matalonis,
2016 WI 17, ¶¶68-84." Mot. for Recons. 2 n.2
8
New Richmond News v. City of New Richmond, 2015 WI 106,
¶10, 365 Wis. 2d 610, 875 N.W.2d 107 (Abrahamson, J.,
concurring).
5
No. 2014AP2431.pdr
deciding not to participate in New Richmond News, Justice
Rebecca Bradley violated established rules of this court.
¶54 Nothing could be further from the truth. As Justice
Abrahamson well knows, this court has no procedure that directs
how the court and the justices are to proceed when a justice
leaves mid-term and another justice takes his or her place.
Limited guidance is found in our Internal Operating Procedures
which provide:
A justice may recuse himself or herself under any
circumstances sufficient to require such action. The
grounds for disqualification of a justice are set
forth in Wis. Stat. § 757.19. The decision of a
justice to recuse or disqualify himself or herself is
that of the justice alone.
IOP, II.L.1. Although the IOP is not directly on point, it
supports Justice Rebecca Bradley's decisions. Furthermore,
Justice Abrahamson is well aware that Justice Rebecca Bradley
did extensive research in advance of deciding how to proceed
because Justice Rebecca Bradley shared her research with the
court.
¶55 And finally, Justice Abrahamson is well aware that
this court was presented with her version of United States
Supreme Court procedures that she asserts are employed when a
justice leaves the United States Supreme Court mid-term. She
also knows that we did not adopt those procedures for use by
Wisconsin Supreme Court justices. All of those facts are
missing from her three writings that attack Justice Rebecca
Bradley.
6
No. 2014AP2431.pdr
¶56 Because Justice Abrahamson has omitted important facts
from her separate writings that were well known to her when she
personally attacked Justice Rebecca Bradley and because her
attacks immediately preceded the election of a justice to our
court, it appears that Justice Abrahamson is using the prestige
of her judicial office to further private interests.
¶57 While Justice Abrahamson is free to speak in support
of her political views in many other forums, as Justice Ann
Walsh Bradley did in her public endorsement of Joanne
Kloppenburg, Justice Rebecca Bradley's opponent in the April 5,
2016 election for supreme court justice, justices are
constrained from doing so in court opinions, which should
address legal issues presented to the court for decision.
Accordingly, I respectfully concur in the majority opinion.
¶58 I am authorized to state that Justice REBECCA G.
BRADLEY joins this concurrence.
7
No. 2014AP2431.dtp
¶59 DAVID T. PROSSER, J. (concurring). This case
presents a classic example of the challenges facing appellate
courts. It compels us to resolve a question arising out of the
convergence of ambiguous statutory language, well-reasoned but
conflicting precedent, and a heart-wrenching factual situation.
¶60 Wisconsin Stat. § 48.415 is the Wisconsin statute
listing grounds for the termination of parental rights.
Subsection (2) discusses the ground of "Continuing Need of
Protection or Services" and sets out what a county must prove to
establish this ground.
¶61 Subsection (2)(a)1. lists the first item of proof:
(a)1. That the child has been adjudged to be
a 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).
¶62 To understand what the first item of proof requires,
we must examine and interpret Wis. Stat. § 48.356, especially
subsection (2). The statute reads:
48.356 Duty of court to warn.
(1) Whenever the court orders a child to be
placed outside his or her home, orders an expectant
mother of an unborn child to be placed outside of her
home, or denies a parent visitation because the child
or unborn child has been adjudged to be in need of
protection or services under s. 48.345, 48.347,
48.357, 48.363, or 48.365 and whenever the court
reviews a permanency plan under s. 48.38(5m), the
court shall orally inform the parent or parents who
appear in court or the expectant mother who appears 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 or expectant
1
No. 2014AP2431.dtp
mother to be returned to the home or for the parent to
be granted visitation.
(2) In addition to the notice required under
sub. (1), any written order which places a child or an
expectant mother outside the home or denies visitation
under sub. (1) shall notify the parent or parents or
expectant mother of the information specified under
sub. (1).
¶63 As the majority opinion explains, after St. Croix
County presented its case at a fact-finding hearing, Juanita's
counsel moved the circuit court to dismiss the TPR petition on
grounds that the county had failed to prove elements related to
the statutory sections quoted above. Majority op, ¶10. In
short, Juanita claimed that the county had not provided adequate
written notice under the statutes.
¶64 One of the ablest circuit judges in Wisconsin, Edward
F. Vlack, concluded that there had been "substantial
compliance."
¶65 Judge Vlack's terminology was ironic because in 1988
the court of appeals held: "If a statute is mandatory, its
observance is usually said to be imperative. We conclude that
substantial compliance with sec. 48.356(2), Stats., is
insufficient." D.F.R. v. Juneau Cty. DSS, 147 Wis. 2d 486, 493,
433 N.W.2d 609 (Ct. App. 1988) (citation omitted). The court of
appeals then ruled: "Because the department did not establish
that D.F.R.'s children had been outside her home for a
cumulative total period of one year or longer pursuant to
dispositional orders containing the notice required by sec.
48.356(2), Stats., the trial court erred in terminating D.F.R.'s
parental rights." Id. at 499.
2
No. 2014AP2431.dtp
¶66 The result in D.F.R. introduced grave uncertainty and
hardship into the lives of two young children.
¶67 More than a decade later, this court reviewed a case
in which the circuit court terminated a father's rights to his
daughter. The court of appeals reversed the circuit court
because some orders removing the daughter from her home did not
include the written notice prescribed by Wis. Stat. § 48.356(2)
(1997-98).
¶68 The court of appeals reluctantly followed the D.F.R.
case:
Despite our firm belief that substantial compliance
should apply in this case, we are compelled by D.F.R.
v. Juneau County Department of Social Services, 147
Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988), to
reverse the termination order.
. . . .
This is an extremely unfortunate case. However,
the result is compelled by the statutes and D.F.R.
The author of this opinion has believed D.F.R. to be
incorrect from the beginning. This court believed
when D.F.R. was decided, and still believes now, that
substantial compliance is a viable and reasonable tool
with which to reach the correct result in a case like
this one. When a parent receives actual notice, like
the one Steven orally obtained from the trial court at
the March 27, 1996 hearing, the hypertechnical notice
requirements of the statute should not have to be
followed to the letter.
Waukesha Cty. v. Steven H., No. 1998AP3033, unpublished slip op.
at 2, 7 (Wis. Ct. App. Feb. 24, 1999).
¶69 On review, a unanimous supreme court reversed,
concluding that:
Wis. Stat. §§ 48.356(2) and 48.415(2) do not require
that each and every order removing a child from his or
her home contain the written notice prescribed by
3
No. 2014AP2431.dtp
§ 48.356(2) in order for the termination of parental
rights to proceed. . . . This interpretation of
§§ 48.356(2) and 48.415(2) ensures that a parent
receives the written notice required by § 48.356(2) in
a timely manner and does not vitiate a termination of
parental rights proceeding when one or more previous
orders fails to contain the statutorily prescribed
written notice.
Waukesha Cty. v. Steven H., 2000 WI 28, ¶3, 233 Wis. 2d 344, 607
N.W.2d 607.
¶70 There were no amendments to the relevant statutes
between 1988 and 2000 that necessitated an altered
interpretation of the two statutes. What changed was the
court's perception that unbending adherence to the statutory
text was producing unconscionable results for children, even
though the affected parents had received plenty of actual
notice, though perhaps not the repeated written notice implied
by Wis. Stat. § 48.356(2).
¶71 This court's Steven H. opinion was a brilliant
exercise of judicial craftsmanship. It discerned the ambiguity
in the wording of Wis. Stat. § 48.356 in relation to Wis. Stat.
§ 48.415(2). It distinguished the D.F.R. case. It seized on a
fact——that the "last order entered a year before the start of
the proceeding to involuntarily terminate parental rights did
contain the written notice required," Steven H., 233
Wis. 2d 344, ¶23——to create a rule. It addressed earnestly the
critical importance of protecting parents from the state
"precipitously or capriciously terminating parental rights."
Id., ¶5. It admonished judges that "the better practice is to
include the written notice" in § 48.356(2) in all orders to
which the statute applies. Id., ¶3.
4
No. 2014AP2431.dtp
¶72 The plain truth, however, is that the opinion in
Steven H. deliberately chose not to follow the strict terms of
the statute. Thus, it opened the door for the majority opinion
in this case.
¶73 The entire court approved the Steven H. opinion in
2000. The entire court should approve the majority opinion now.
Footnote 9 of the majority opinion succinctly provides the
foundation for the court's inevitable decision and illustrates
why the facts make the law.
¶74 For the foregoing reasons, I respectfully concur.
5
No. 2014AP2431.rgb
¶75 REBECCA G. BRADLEY, J. (concurring). For the third
time this term, Justice Shirley Abrahamson has written a
separate opinion discussing my participation or non-
participation in cases pending in this court before I joined the
court.1 See New Richmond News v. City of New Richmond, 2015 WI
106, 365 Wis. 2d 610, 875 N.W.2d 107; and State v. Matalonis,
2016 WI 7, ¶79, 366 Wis. 2d 443, 875 N.W.2d 567. The dissent
authors criticize my decision to participate in three cases:
this case, Matalonis, and State v. Parisi, 2016 WI 10, 367
Wis. 2d 1, 875 N.W.2d 619;2 but not other pending cases including
New Richmond News. The dissent further suggests this court had
an established procedure to follow when a new justice joins the
court mid-term and that the three cases in which I chose to
participate cannot be distinguished from other cases. The
dissent is wrong on both points and I write separately to
explain my reasons for participating in certain cases and not
participating in others.
¶76 No Wisconsin statute, rule of appellate procedure,
internal operating procedure ("IOP") or supreme court rule
specifically addresses the participation of a newly-appointed
justice in cases that were argued but not decided before the new
1
For the first time, Justice Ann Walsh Bradley joins the
dissent.
2
See State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d
619. In Parisi, Justice Abrahamson did not write her own
dissent and instead joined the dissent of Justice Ann Walsh
Bradley, who wrote about the merits of that case rather than my
participation.
1
No. 2014AP2431.rgb
justice was sworn in. The dissent has not cited any Wisconsin
authority because none exists. This is the first time a newly-
appointed justice joined the court mid-term due to the death of
a supreme court justice.3 In four cases that were argued but not
decided before I was sworn in, this court was deadlocked on
whether to affirm or reverse the court of appeals: this case,
New Richmond News, Matalonis, and Parisi. Significantly, in
those cases where the court was deadlocked at the time I joined
the court, no orders had been issued affirming the court of
appeals. After substantial research, I learned there was
precedent on how to proceed in New Richmond News, which was the
only one of the deadlocked cases that had come to this court on
bypass from the court of appeals. Under State v. Richard
Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995),
when a case is before this court on a petition to bypass or a
certification, and a tie vote results, the case is remanded to
the court of appeals for decision. That precedent was followed
when this court vacated the bypass petition in New Richmond
News, under Richard Knutson, Inc., and remanded the case to the
court of appeals. This procedure recognizes that this court
3
There is one other time in history of which we are aware
where a supreme court justice died before the court's term
concluded. Chief Justice Horace W. Wilkie died on May 23, 1976.
After his death, orders were issued on June 30, 1976 affirming
the county courts in cases where the supreme court was equally
divided. See Punches v. Schmidt, 73 Wis. 2d 206, 243 N.W.2d 518(1976); State v. Kline, 73 Wis. 2d 337, 243 N.W.2d 519 (1976).
Justice Abrahamson was appointed to fill the vacancy created by
Chief Justice Wilkie's death, but she was not sworn in until
September 1976 when this court's new term began.
2
No. 2014AP2431.rgb
could benefit from a decision rendered by the court of appeals
and then revisit the issues if one of the parties petitions for
supreme court review.
¶77 There is not, however, any Wisconsin authority with
respect to new justices handling pending "deadlocked" cases that
have come to this court on petitions granted for review. If I
declined to participate in the three "deadlocked" cases, the
court of appeals' decisions would stand. This court, however,
decided many months ago (April 2015 for this case and Matalonis,
and June 2015 for Parisi) that the court of appeals' decisions
in these three cases merited this court's review. Hundreds of
petitions for review are filed with this court every year and
this court accepts only a limited number of cases. When this
court accepts a case for review, not only do the parties
undertake significant time and expense to litigate the matter
before the supreme court, but the people of the State deserve
the issues presented to be decided by the supreme court.
Although our court of appeals judges do an excellent job, they
serve a different role than the supreme court. The court of
appeals' primary function is error-correcting. See Cook v.
Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246 (1997). The supreme
court, on the other hand, serves the primary function of "law
defining and law development." Id. As a member of this court,
it is my duty to participate in those cases so that the people
of Wisconsin receive a decision from the supreme court. In each
of the deadlocked cases, nothing had been decided and no orders
or opinions had been issued at the time I joined the court. It
3
No. 2014AP2431.rgb
is also important to note that the initial vote on these three
cases after the passing of Justice Crooks was 3-3. Although
this case and Parisi ultimately were released as 5-2 decisions,
this could not have impacted my analysis regarding these cases
in which I would participate because at the time I chose to
participate, these cases were deadlocked 3-3. The dissent
misleads the public in paragraph 145 by omitting this important
fact when it references the 5-2 final result in this case and
Parisi. In doing so, the dissent implies this case and Parisi
were treated differently. That is not true. My participation
analysis was consistent with respect to each of these cases.
¶78 In each deadlocked case, I watched oral arguments on
WisconsinEye4 and would have requested re-argument if important
questions had been left unanswered. We are fortunate to have
every oral argument video-recorded and available for viewing on
WisconsinEye. These recordings are of high quality, allowing
viewers to see the argument as if they were present.
WisconsinEye has multiple video-cameras, which rotate between
the lawyers arguing at the podium and the justices asking
questions. All demeanors, hand gestures, and other non-verbal
forms of communication are contained in the video-recordings.
These video-recordings have allowed past justices, who could not
attend oral argument in person, to do the same thing I did——
watch the oral argument on WisconsinEye.
4
WisconsinEye, http://www.wiseye.org (last visited Feb. 23,
2016).
4
No. 2014AP2431.rgb
¶79 Following my review of each deadlocked case, I
participated in conferences with my fellow justices for further
discussion of and to reach a majority decision in each case,
pursuant to IOP II.E, governing post-argument decision
conference. This reasonable procedure provided the best option
allowing this court to timely decide cases upon which it agreed
the supreme court needed to give guidance. The people of
Wisconsin deserve timely decisions from this court. If the oral
arguments had not been video-recorded and available for viewing,
we would have been forced to subject these parties to the
additional cost and inconvenience of re-arguing, for the sake of
one new justice, the exact same arguments that had already been
presented a short time earlier to the other six justices.
Justice Abrahamson's proposed procedure requiring reargument
would have delayed justice, added unnecessary expense, and may
have even delayed these cases into the 2016-17 term.
¶80 Similar to Wisconsin, there is no federal rule
specifically addressing what should occur when a new justice
joins the court after the term has commenced, with respect to
pending cases on which the court has reached an impasse and no
decision has been issued. While there is a federal rule
addressing petitions for rehearing, such petitions are similar
to Wisconsin's reconsideration motions and, like the Wisconsin
rule, the federal rule applies only to judgments or decisions of
the court. This is made clear in Stephen M. Shapiro, et al.,
Supreme Court Practice, 838 (10th ed. 2013), which states that
"rehearing petitions have been granted in the past where the
5
No. 2014AP2431.rgb
prior decision was by an equally divided Court." (Emphasis
added.) At the risk of being unduly repetitive but in order to
underscore the significance of this fact, no judgments or
decisions had been issued in the deadlocked cases at the time I
joined the court.
¶81 My participation in the deadlocked cases is supported
by the past practices of the United States Supreme Court under
similar circumstances. Following the death of Chief Justice
William H. Rehnquist and the appointment of Justice Samuel
Anthony Alito, Jr., that Court revisited three cases in which
the Court was presumed to be deadlocked; Justice Alito joined
the 5-4 majority in each case following re-argument. See
Shapiro, supra, at 838.
¶82 Even though Justice Abrahamson explained her concerns
in her concurrence in New Richmond News, she elected to write
separately a second time in Matalonis, criticizing my decision
to participate in Matalonis. Although I could have responded to
her dissent in Matalonis, I chose not to because the dissent was
unrelated to the merits of the case. I believed Matalonis would
be Justice Abrahamson's last separate writing criticizing my
participation and I chose not to write separately to avoid
further delaying the release of the Matalonis opinion.
¶83 In the dissent here, Justice Abrahamson goes beyond
her writings in New Richmond News and Matalonis by including a
reference to the allegations of Matalonis's lawyer——allegations
made in a motion for reconsideration based on Justice
Abrahamson's criticism of my participation. By memorializing in
6
No. 2014AP2431.rgb
her dissent here the adversarial allegations made by an attorney
not even involved in the case at hand, Justice Abrahamson has
revealed her true motivation behind her critical concurrence and
dissents. Justice Abrahamson's separate writings were not about
documenting for future courts how to properly handle pending
cases when a justice dies mid-term and a new justice joins the
court. Including the non-prevailing lawyer's adversarial
allegation from Matalonis——an entirely separate case——in the
dissent in this TPR case is entirely inappropriate and serves
only one purpose: to give others material——within a published
Wisconsin Supreme Court decision, no less——to attack and
criticize me. The Code of Judicial Conduct requires that: "A
judge shall dispose of all judicial matters promptly,
efficiently and fairly." SCR 60.04(1)(h). Part II of the
dissent here violates this rule and is cumulative and
unnecessary as similar writings already exist in both New
Richmond News and Matalonis.
¶84 Justice Abrahamson and Justice Ann Walsh Bradley
suggest in this dissent that I am sharing "for the very first
time" my explanation on my participation. See dissent, ¶135.
Although this is the first time I have shared my reasoning for
participation in a written opinion, Justices Abrahamson and Ann
Walsh Bradley have known my reasons since October 2015 when I
provided them (and the entire court) with my reasons for
participating based on the substantial research I conducted. I
did not feel it necessary or appropriate to delay release of
these opinions to include a discussion of my participation
7
No. 2014AP2431.rgb
decision. Justice Abrahamson now joined by Justice Ann Walsh
Bradley did not agree with the reasonable, well-researched, and
supported decision I made. Instead of accepting it, Justice
Abrahamson chose to repeatedly criticize me: first in New
Richmond News by arguing I should have participated and then in
Matalonis because I did participate. In New Richmond News, she
complained that remanding to the court of appeals delays a
decision, yet in Matalonis and St. Croix, (joined by Justice Ann
Walsh Bradley in St. Croix), advocates for a procedure that
delays both decisions. Justice Abrahamson also engaged in
multiple revisions of the dissent here causing substantial delay
in the release of this opinion. Her decision to write
separately in these cases has delayed justice, and with respect
to this case in particular, where efficient resolution is
paramount because this case involves a child's well-being, this
is particularly troubling. Part II of the dissent contributes
nothing to any legitimate function of the court and serves only
to perpetuate the diminished reputation of Wisconsin's highest
court, which my other colleagues and I are striving to restore.
The time Justice Abrahamson spent on these separate writings
would have been better served drafting a proposed rule to
establish a procedure specifically addressing these
circumstances. Perhaps this court should enact a rule outlining
the proper procedure for processing deadlocked cases when a new
justice joins the court after the term has commenced so new
justices are not forced to defend themselves against decisions
made in good faith. At present, no such rule or procedure
8
No. 2014AP2431.rgb
exists, and as I have explained, neither Justice Abrahamson's
experience in 1976 nor the United States Supreme Court practices
mirrors the circumstances presented here.
9
No. 2014AP2431.ssa & awb
¶85 SHIRLEY S. ABRAHAMSON, J. and ANN WALSH BRADLEY,
J. (dissenting). Stare decisis (Latin for "let the decision
stand") is a basic tenet of the rule of law.1 Although stare
decisis is not a mechanical formula requiring blind adherence to
precedent, departing from precedent requires special
justification,2 and "[n]o change in the law is justified by a
change in the membership of the court or a case with more
egregious facts."3
¶86 Although the majority opinion states that it
"adher[es] to the important principle of stare decisis,"4 it does
not. The majority opinion, without special justification,
departs from a unanimous, workable, and settled precedent of
this court, Waukesha County v. Steven H., 2000 WI 28, 233
Wis. 2d 344, 607 N.W.2d 607, and unjustly terminates the
parental rights of Juanita A., a single mother with cognitive
difficulties, to her son, Matthew D. The termination is based
on continuing "child in need of protection or services"
("CHIPS") grounds.
¶87 At issue in the instant case is whether Juanita A.
received notice required under Wis. Stat. §§ 48.356(2) and
1
See Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91,
¶31, 293 Wis. 2d 38, 717 N.W.2d 216.
2
Bartholomew, 2006 WI 91, ¶31 (citing Johnson Controls,
Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶94, 264
Wis. 2d 60, 665 N.W.2d 257).
3
State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591(1994) (Abrahamson, J., concurring) (quoted source omitted).
4
Majority op., ¶3.
1
No. 2014AP2431.ssa & awb
48.415(2) of the grounds for termination of her parental rights
and the conditions for the return of Matthew D. to her home.
¶88 The notice requirements contained in these two
statutes are an important part of the "panoply of procedures"
created by the legislature "to assure that parental rights will
not be terminated precipitously or capriciously when the state
exercises its awesome power to terminate parental rights."5
¶89 As the court of appeals in the instant case correctly
concluded, under this court's unanimous decision in Steven H.,
Juanita A. did not receive the required statutory notice of the
grounds for termination of her parental rights and the
conditions for the return of her son.
¶90 Rather, over the course of these proceedings, at least
27 orders were issued, four of which were required under Wis.
Stat. § 48.356(2) to contain written notice of the grounds for
termination of her parental rights and the conditions for the
return of Juanita A.'s son. Only one of those four orders6
contained the required notice. Oral warnings, also required by
statute, were provided only three of the seven times they were
required. See Wis. Stat. § 48.356(1). Compounding these notice
deficiencies, after receiving the only order containing the
required notice, Juanita A. received several orders containing
5
Waukesha Cnty. v. Steven H., 2000 WI 28, ¶25, 233
Wis. 2d 344, 607 N.W.2d 607.
6
This order, issued on October 11, 2011, revised an order
entered on August 2, 2011, which did not contain written
warnings.
2
No. 2014AP2431.ssa & awb
contradictory information or suggesting that termination of her
parental rights may no longer have been a risk.
¶91 The majority opinion sets aside these troubling facts,
departs from Steven H., and concludes that one order containing
a required statutory notice is sufficient to allow the
termination of Juanita A.'s parental rights to Matthew D.7 In so
doing, the majority opinion withdraws the language in Steven H.
adopting the "last order" notice rule and replaces it with an
"at least one order" notice rule.8
¶92 We disagree with the majority opinion. We would
adhere to the unanimous opinion in Steven H. and affirm the
court of appeals in the instant case. We would hold that
Juanita A. did not receive the required statutory notice of the
grounds for termination of her parental rights and the
conditions for the return of Matthew D.; the "last order"
placing Matthew D. outside the home did not contain the required
statutory notice.
¶93 We write separately to make two points:
1. The majority opinion departs from precedent. Although
the statutes at issue in Steven H. and in the instant
case have not changed, the majority opinion is
misleading in stating that it "adher[es] to the
7
Majority op., ¶2.
8
Majority op., ¶17.
3
No. 2014AP2431.ssa & awb
important principle of stare decisis" in "clarifying"
Steven H. by limiting its holding to its facts.9
To interpret Steven H. as limited to its facts, the
majority opinion withdraws the holding in Steven H.
adopting the "last order" notice rule.10
The majority opinion is misguided. It ignores the
accepted rules of statutory interpretation, dilutes
the notice given to parents, and departs from
precedent without special justification.
Nothing aside from the membership of the court has
changed since Steven H. A change in membership of the
court does not justify a departure from precedent.
2. The change in membership of this court——specifically,
the participation of Justice Rebecca G. Bradley, the
author of the majority opinion in the instant case——
appears inconsistent with past practice in this court
and in the United States Supreme Court regarding the
participation of a newly appointed justice in cases
9
See majority op., ¶¶3-4.
10
See majority op., ¶¶4 & nn.3-4, 17.
4
No. 2014AP2431.ssa & awb
heard and tentatively decided prior to the new
justice's joining the court.11
¶94 For the reasons set forth, we dissent and write
separately.
I
¶95 In Steven H., this court addressed whether written
notice of the grounds for termination of parental rights and the
conditions necessary for the child to be returned to the home is
required, as Wis. Stat. § 48.356 states, in "any written order"12
11
Wisconsin Supreme Court Internal Operating Procedure II.E
states that after oral argument, "[w]hen possible, the court
reaches a decision in each of the cases argued that day, but any
decision is tentative until the decision is mandated."
12
Wisconsin Stat. § 48.356 provides:
(1) Whenever the court orders a child to be placed
outside his or her home, orders an expectant mother of
an unborn child to be placed outside of her home, or
denies a parent visitation because the child or unborn
child has been adjudged to be in need of protection or
services under s. 48.345, 48.347, 48.357, 48.363, or
48.365 and whenever the court reviews a permanency
plan under s. 48.38(5m), the court shall orally inform
the parent or parents who appear in court or the
expectant mother who appears 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 or expectant mother to be
returned to the home or for the parent to be granted
visitation.
(2) In addition to the notice required under sub. (1),
any written order which places a child or an expectant
mother outside the home or denies visitation under
sub. (1) shall notify the parent or parents or
expectant mother of the information specified under
sub. (1).
5
No. 2014AP2431.ssa & awb
placing the child outside the home, or in "one or more court
orders . . . containing the notice required by s.
48.356(2) . . ." as stated in Wis. Stat. § 48.415(2)(a)1.13
¶96 In other words, two statutes that are not consistent
govern the notice requirements in CHIPS and termination of
parental rights proceedings. The court unanimously so concluded
in Steven H.:14 "[A]lthough Wis. Stat. § 48.356(2) speaks of
written notice in any order placing the child outside the home,
§ 48.415(2) speaks of one or more court orders placing the child
containing written notice."15 "The words 'one or more orders' in
§ 48.415(2) are not the equivalent of 'any,' 'each,' 'all,' or
'every' order."16
¶97 To harmonize this inconsistency, the Steven H. court
unanimously held: (1) that Wis. Stat. §§ 48.356(2) and 48.415(2)
did not require that every order removing a child from his or
13
Wisconsin Stat. § 48.415(2) provides in relevant part:
(2) Continuing need of protection or services.
Continuing need of protection or services, which shall
be established by proving any of the following:
(a)1. 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 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).
14
See Steven H., 233 Wis. 2d 344, ¶¶30-32.
15
Steven H., 233 Wis. 2d 344, ¶22.
16
Steven H., 233 Wis. 2d 344, ¶30.
6
No. 2014AP2431.ssa & awb
her home contain the notice prescribed by Wis. Stat.
§ 48.356(2); and (2) "that Wis. Stat. §§ 48.356(2) and 48.415(2)
require that the last order specified in § 48.356(2) placing a
child outside the home, which must be issued at least six months
before the filing of the petition to terminate parental rights,
must contain the written notice prescribed by § 48.356(2)."17
Nonetheless, the court advised that circuit courts should
include the written notice required by Wis. Stat. § 48.356(2) in
all orders to which the statute applies.18 The notice can easily
be attached to each written order.
¶98 The majority opinion's rejection of the "last order"
notice rule in Steven H. and adoption of an "at least one order"
notice rule19 is misguided for the following reasons.
¶99 First, contrary to the majority opinion's insinuations
of conflict in decisions of the court of appeals, the "last
order" notice rule is settled law in Wisconsin.
¶100 Relying on a court of appeals decision issued shortly
after Steven H. was mandated in 2000, namely Waushara County v.
Lisa K., 2000 WI App 145, 237 Wis. 2d 830, 615 N.W.2d 204, the
majority opinion explains that even though the "last order" in
the instant case did not contain the required notice, notice was
still adequate.
17
Steven H., 233 Wis. 2d 344, ¶3 (emphasis added).
18
Steven H., 233 Wis. 2d 344, ¶3.
19
Majority op., ¶¶4, 17.
7
No. 2014AP2431.ssa & awb
¶101 In Lisa K., the court of appeals did not apply Steven
H.'s "last order" notice rule. Instead, Lisa K. distinguished
Steven H. on its facts, noting that in Lisa K., the required
notices of the grounds for termination of parental rights and
the conditions for the return of the child were given on all
occasions they were required except in the last order, and the
parent did not complain of confusion as a result of the absence
of notice.20 As a result, "[c]onsidering Steven H.'s dual focus
on adequate notice of the conditions with which a parent must
comply and the warning that parental rights are in jeopardy,"
the court of appeals concluded that Lisa K. had "more than
adequate notice . . . ."21
¶102 Lisa K. is distinguishable. Unlike the parent in Lisa
K., Juanita A. understandably complains of confusion in the
instant case. Juanita A. did not receive the required notice in
three of the four orders placing Matthew D. outside her home.
After receiving the only order containing the required notice,
Juanita A. received orders containing contradictory information
or suggesting that her parental rights to Matthew D. were no
20
Waushara Cnty. v. Lisa K., 2000 WI App 145, ¶10, 237
Wis. 2d 830, 615 N.W.2d 204. In Lisa K., the parties also
argued that part of the "last order" incorporated by reference
the previous notices given to the parent. The court of appeals
did not, however, reach the question of whether that satisfied
the statutory notice requirements. See Lisa K., 237
Wis. 2d 830, ¶2 nn.2-3.
21
Lisa K., 237 Wis. 2d 830, ¶10.
8
No. 2014AP2431.ssa & awb
longer in jeopardy.22 The circuit court's oral warnings
regarding termination of parental rights and the conditions for
the return to the home were also deficient. Oral warnings were
provided on three of the seven occasions they were required, and
were not given at the final hearing.
¶103 Although the majority opinion relies on Lisa K., it
does not adopt the "adequate notice" standard adopted in Lisa
K.23
¶104 Instead, the majority opinion relies on Lisa K. to
demonstrate its contention that "Steven H. has created a
question in the court of appeals and circuit courts as to
whether Steven H. created a bright-line rule requiring that the
last order in a CHIPS case contain the written notice in order
to satisfy Wis. Stat. § 48.415(2)(a)1. Courts . . . are ruling
different ways on this question."24
¶105 Lisa K. is the only court of appeals decision cited by
the majority opinion that concludes that failing to provide
notice of the grounds for termination of parental rights and the
conditions necessary for the child to be returned to the home in
the "last order . . . placing the child outside the home, which
22
For example, permanency hearing orders given on June 5,
2013, and May 15, 2014, state at first that the court finds the
permanency goal is no longer returning Matthew D. to Juanita
A.'s home, but later state that the permanency goal remains
return to the home.
23
The majority opinion suggests at times, however, that
notice in the instant case was "adequate." Majority op., ¶¶18-
19.
24
Majority op., ¶18.
9
No. 2014AP2431.ssa & awb
must be issued at least six months before the filing of the
petition to terminate parental rights"25 does not require
dismissal of the petition to terminate parental rights.
¶106 In fact, the court of appeals has consistently
followed the "last order" notice rule in Steven H. As the court
of appeals put it in the instant case, Steven H.'s adoption of
the "last order" notice rule "was unequivocal. The last order
must contain the notice prescribed by Wis. Stat. § 48.356(2)."26
¶107 For cases recognizing and applying the "last order"
notice rule in Steven H., see, for example:27
• State v. Amelia A., Nos. 2015AP630-31, unpublished slip
op., ¶¶10-11 (Wis. Ct. App. June 9, 2015);
• Portage Cnty. DHHS v. Julie G., No. 2014AP1057,
unpublished slip op., ¶¶20-21 (Wis. Ct. App. July 31,
2014);
• Florence Cnty. DHS v. Jennifer B., Nos. 2011AP88-90,
unpublished slip op., ¶11 (Wis. Ct. App. Aug. 19, 2011);
25
Steven H., 233 Wis. 2d 344, ¶3.
26
St. Croix Cnty. Dep't of Health & Human Servs. v. Michael
D., No. 2014AP2431, unpublished slip op., ¶13 (Wis. Ct. App.
Jan. 16, 2015).
27
Unpublished court of appeals decisions may be cited for
purposes other than as precedent or authority. See Wis. Stat.
§ (Rule) 809.23(3). For example, citations to unpublished
decisions are permissible to show conflict among the districts
of the court of appeals. See State v. Higginbotham, 162
Wis. 2d 978, 996-98, 471 N.W.2d 24 (1991). We are citing
unpublished court of appeals cases to show consistency of
reasoning and result in court of appeals cases.
10
No. 2014AP2431.ssa & awb
• Walworth Cnty. v. Jeanna R., No. 2009AP1952, unpublished
slip op., ¶¶16-17 (Wis. Ct. App. Nov. 11, 2009);
• Dunn Cnty. DHS v. Debra O., Nos. 2008AP1775-77,
unpublished slip op., ¶¶6-7 (Wis. Ct. App. Jan. 9, 2009);
and
• State v. Zena H., Nos. 99-1777, 99-1813, unpublished slip
op., ¶17 (Wis. Ct. App. Apr. 25, 2000).
¶108 The majority opinion cites some (but not all) of these
authorities, but fails to recognize the court of appeals'
consistent recognition and application of the "last order"
notice rule adopted by Steven H.28
¶109 Instead, the majority opinion argues that these cases
"demonstrate the factual variations that arise in TPR cases and
how the courts have reached differing decisions based on Steven
H."29 Simply because different cases, with different facts,
raising different legal issues have arisen since Steven H. does
not undermine Steven H.'s unanimous, "unequivocal," "last order"
notice rule.
¶110 Wisconsin jury instructions also recognize the "last
order" notice rule adopted by Steven H. See Comment, Wis JI——
Children 324A.
¶111 Second, the majority opinion relies on Pierce County
v. Amy F., No. 2004AP1552, unpublished slip op. (Wis. Ct. App.
Aug. 31, 2004), to support its position that courts are ruling
28
Majority op., ¶20.
29
Majority op., ¶20.
11
No. 2014AP2431.ssa & awb
in different ways on whether Steven H. created a bright-line
rule requiring that the last order in a CHIPS case contain the
written notice.30
¶112 Amy F. is inapposite. It addressed a different
question, namely whether a petition to terminate parental rights
should be dismissed because the parent did not receive the "last
order."
¶113 Third, the "last order" notice rule unanimously
adopted in Steven H., unlike the "at least one order" notice
rule adopted by the majority opinion in the instant case,
fulfills the expressed legislative purposes of the Children's
Code.
¶114 As the court stated in Steven H., the expressed
legislative purposes of the Children's Code, set forth in Wis.
Stat. § 48.01, "assist[] the court in interpreting the
inconsistent language of the two statutes."31 Among other
30
Majority op. ¶20.
31
Steven H., 233 Wis. 2d 344, ¶32.
Wisconsin Stat. § 48.01, captioned "Title and legislative
purpose" provides in relevant part as follows:
(1) This chapter may be cited as "The Children's
Code". In construing this chapter, 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) While recognizing that the paramount goal of this
chapter is to protect children and unborn children, to
preserve the unity of the family, whenever
appropriate, by strengthening family life through
assisting parents and the expectant mothers of unborn
(continued)
12
No. 2014AP2431.ssa & awb
things, the expressed purposes include "assist[ing]
parents . . . in changing any circumstances in the home which
might harm the child . . . ," and "provid[ing] judicial and
other procedures through which . . . interested parties are
assured fair hearings and their constitutional and other legal
rights are recognized and enforced . . . ." Wis. Stat.
§ 48.01(1)(a), (ad).
¶115 Unlike the majority opinion's "at least one order"
notice rule, the "last order" notice rule ensures that parents
"will be given adequate notice of the conditions for return and
time to make any necessary changes to forestall the termination
children, whenever appropriate, in fulfilling their
responsibilities as parents or expectant mothers. The
courts and agencies responsible for child welfare,
while assuring that a child's health and safety are
the paramount concerns, should assist 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 taken into custody. The courts
should recognize that they have the authority, in
appropriate cases, not to reunite a child with his or
her family. 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.
(ad) To provide judicial and other procedures through
which children and all other interested parties are
assured fair hearings and their constitutional and
other legal rights are recognized and enforced, while
protecting the public safety.
13
No. 2014AP2431.ssa & awb
of parental rights . . . ." while avoiding the confusion that
might result if a parent receives orders without the statutory
notice after receiving earlier orders containing the required
notice.32
¶116 Moreover, the majority opinion's "at least one order"
notice rule dilutes the notice received by parents. Because
petitions to terminate parental rights based on continuing CHIPS
are filed by the State or county, the circuit court does not
necessarily know whether an order placing a child outside the
home will be the "last order."33 As a result, circuit courts
have an incentive under the "last order" notice rule to provide
notice in all CHIPS orders. Under the majority opinion, a
circuit court can simply provide the warnings in the first order
placing the child outside the home and dispense with notice
thereafter.
¶117 Although the majority opinion expresses "confiden[ce]"
that its holding will not dilute the notice received by
parents,34 the court is wading into dangerous waters. "A
parent's desire for and right to the companionship, care,
custody, and management of his or her children is an important
interest that undeniably warrants deference and, absent a
powerful countervailing interest, protection." Sheboygan Cnty.
32
Steven H., 233 Wis. 2d 344, ¶¶31, 35.
33
See Kenosha Cnty. v. Jodie W., 2006 WI 93, ¶8, 293
Wis. 2d 530, 716 N.W.2d 845.
34
Majority op., ¶17 n.8.
14
No. 2014AP2431.ssa & awb
v. Julie A.B., 2002 WI 95, ¶22, 255 Wis. 2d 170, 648 N.W.2d 402(internal quotation marks omitted). Diluting the notice
received by parents of the grounds for termination of parental
rights and the conditions for the child's return undermines the
fairness and adequacy of termination of parental rights
proceedings and may raise significant constitutional due process
issues.
¶118 Fourth, the majority opinion's interpretation of Wis.
Stat. § 48.415(2) ignores and violates accepted rules of
statutory interpretation. The majority opinion states that
"[o]ur standards for interpreting statutes are well-known and
need not be repeated here."35 It appears that the majority
opinion's failure to state the rules resulted in the majority
opinion's failure to apply them.
¶119 The majority opinion examines Wis. Stat. § 48.415(2),
but essentially ignores the text of a related statute
§ 48.356(2). The majority opinion states that because this is a
termination of parental rights case, "not a CHIPS case," only
Wis. Stat. § 48.415(2) is relevant.36 This conclusion ignores
the fact that § 48.415(2) deals specifically with termination of
parental rights actions based on CHIPS and cross-references "the
notice required by [Wis. Stat. §] 48.356(2)."37
35
Majority op., ¶15.
36
Majority op., ¶17.
37
Wis. Stat. § 48.415(2)(a)1.
15
No. 2014AP2431.ssa & awb
¶120 In its plain-meaning analysis, the majority opinion
overlooks the well-accepted rule that context is important to
meaning, as is the structure of the statute in which the
operative language appears. Statutory language is interpreted
in the context in which it is used, as part of a whole; not in
isolation, but in relation to the language of surrounding or
closely related statutes.38 Thus, the majority opinion errs in
its statutory interpretation.
¶121 Furthermore, as we stated previously, the majority
opinion dilutes the statutory notice requirements and may be
treading on the constitutional rights of a parent. A statutory
interpretation that does not raise constitutional issues is
preferable to one that does.39
¶122 Fifth and finally, the majority opinion is misleading
when it states it is "clarifying" Steven H. by interpreting
Steven H. to be limited to its facts.40 The "unequivocal"
holding of Steven H. is not limited to its facts. Steven H.
expressly applies to termination of parental rights cases based
on continuing CHIPS. The Steven H. court states:
We conclude that Wis. Stat. §§ 48.356(2) and 48.415(2)
require that the last order specified in § 48.356(2)
placing a child outside the home, which must be issued
38
See Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶11, 315
Wis. 2d 350, 760 N.W.2d 156.
39
See Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431, 439,
312 N.W.2d 45 (1981) ("'[S]tatutes should be construed so as to
avoid constitutional objections.'") (quoting Niagara of Wis.
Paper Corp. v. DNR, 84 Wis. 2d 32, 50, 268 N.W.2d 153 (1978)).
40
See majority op., ¶4.
16
No. 2014AP2431.ssa & awb
at least six months before the filing of the petition
to terminate parental rights, must contain the written
notice prescribed by § 48.356(2).
Steven H., 233 Wis. 2d 344, ¶3; see also Steven H., ¶31.
¶123 The majority opinion explicitly withdraws this holding
of Steven H.,41 ostensibly to "clarify" that Steven H. applied
only to its facts. But Steven H. unequivocally adopted a "last
order" notice rule for termination of parental rights cases
based on continuing CHIPS. Steven H. did not limit its holding
to the precise facts and circumstances of that case.
¶124 Thus, the majority opinion's adoption of the "at least
one order" notice rule departs from precedent. And no
sufficient justification is provided for this departure.42
Adhering to precedent is "the preferred course [of judicial
action] because it promotes evenhanded, predictable, and
consistent development of legal principles . . . and contributes
to the actual and perceived integrity of the judicial process."43
¶125 "This court is more likely to overturn a prior
decision when one or more of the following circumstances is
present: (1) Changes or developments in the law have undermined
the rationale behind a decision; (2) there is a need to make a
decision correspond to newly ascertained facts; (3) there is a
showing that the precedent has become detrimental to the
41
See majority op., ¶¶4 & nn.3-4, 17.
42
Bartholomew, 293 Wis. 2d 38, ¶32 (citations omitted).
43
State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting State v. Ferron, 219 Wis. 2d 481, 504, 579
N.W.2d 654 (1998)).
17
No. 2014AP2431.ssa & awb
coherence and consistency in the law; (4) the prior decision is
'unsound in principle'; or (5) the prior decision is "unworkable
in practice.'"44
¶126 The majority opinion does not state which, if any, of
these circumstances justifies its departure from precedent in
the instant case. The answer in the instant case is none.
¶127 No changes or developments in the law have occurred.
No newly ascertained facts undermine the court's unanimous
decision in Steven H.
¶128 To the contrary, subsequent circumstances bolster the
unanimous holding in Steven H. Since Steven H. was decided in
2000, the legislature has amended Wis. Stat. § 48.415 nine times
and Wis. Stat. § 48.356 twice.45 By amending both statutes
without removing the conflicting language or otherwise
disturbing the "last order" notice rule in Steven H., the
legislature "accepted and ratified" our holding.46
44
Bartholomew, 293 Wis. 2d 38, ¶33.
45
See 2011 Wis. Act 271; 2011 Wis. Act 257; 2009 Wis. Act
185; 2009 Wis. Act 94; 2007 Wis. Act 116; 2007 Wis. Act 45; 2005
Wis. Act 293; 2005 Wis. Act 277; 2003 Wis. Act 321; 2001 Wis.
Act 109; 2001 Wis. Act 2.
46
See Tex. Dep't of Housing & Cmty. Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015)
("Congress' decision . . . to amend the FHA while still adhering
to the operative language . . . is convincing support for the
conclusion that Congress accepted and ratified the unanimous
holdings of the Court of appeals . . . ."); see also Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal
Texts 322 (2009) ("If a word or phrase has been authoritatively
interpreted by the highest court in a jurisdiction . . . a later
version of that act perpetuating the wording is presumed to
carry forward that interpretation.).
18
No. 2014AP2431.ssa & awb
¶129 The majority opinion does not argue that the court's
unanimous decision in Steven H. is detrimental to the coherence
or consistency of the law or that it is unworkable. Contrary to
the majority opinion's suggestion, the court of appeals has all
but universally followed Steven H.'s "last order" notice rule.
¶130 At best, the majority opinion's sole justification for
its departure from precedent is that Steven H. is unsound in
principle because it does not "apply the statutory words chosen
by the legislature."47 Wrong! Steven H. applied the accepted
rules of statutory interpretation.
¶131 As we explained more fully above (and as the Steven H.
court unanimously concluded), the statutory words chosen by the
legislature are inconsistent. Wisconsin Stat. § 48.356(2)
requires that notice accompany "any written order" placing the
child outside the home. Wisconsin Stat. § 48.415(2) requires
notice in "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) . . . ."
¶132 The majority opinion tries to escape this
inconsistency by arguing that because the instant case is a
termination of parental rights case, we must apply only Wis.
Stat. § 48.415(2). However, this termination of parental rights
action is based on continuing CHIPS. Under Wis. Stat.
§ 48.356(2), any written CHIPS order placing a child outside the
home must contain written notice of the grounds for termination
47
See majority op., ¶25.
19
No. 2014AP2431.ssa & awb
of parental rights and the conditions for the return of the
child. Moreover, Wis. Stat. § 48.415(2) explicitly refers to
"the notice required by s. 48.356(2)," and Wis. Stat.
§ 48.356(2) requires notice in "any written order."
¶133 The question is: What, if anything, has changed since
the court's unanimous decision in Steven H.? The answer is the
membership of the court.
¶134 Four justices who have joined the court since our
unanimous decision in Steven H. now simply disagree with Steven
H. A change in membership of the court is not a sufficient
justification for departing from precedent.48 "When existing law
is open to revision in every case, deciding cases becomes a mere
exercise of judicial will, with arbitrary and unpredictable
results."49
II
¶135 We turn now to the participation of a new member of
the court in deciding the instant case. Justice Rebecca G.
Bradley's concurring opinion in the instant case explains
publicly, for the very first time, her decision to participate
in (some, but not all) cases argued before she became a member
of the court.
48
See Johnson Controls, 264 Wis. 2d 60, ¶138 ("No change in
the law is justified by 'a change in the membership of the court
or a case with more egregious facts.'") (quoting Stevens, 181
Wis. 2d at 441-42 (Abrahamson, J., concurring)).
49
Luedtke, 362 Wis. 2d 1, ¶40 (quoting Schultz v. Natwick,
2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266).
20
No. 2014AP2431.ssa & awb
¶136 All the decisions (but one) in cases argued and
tentatively decided before the new justice's appointment to the
court have been released. This writing is to update the status
of these cases and compare Justice Rebecca G. Bradley's public
approach to the role of a new justice in deciding cases argued
and pending on her appointment and the approach taken in the
past in this court and in the United States Supreme Court
regarding the role of a new justice.
¶137 Indeed, the United States Supreme Court is now
addressing the implications of the recent death of Justice
Antonin Scalia and the possibility that a new justice will be
appointed to fill his seat. The eight United States Supreme
Court justices are expected to follow the Court's past practice
of setting selected cases for reargument to enable a new justice
to participate in deciding these cases. The practice has been
described previously and we summarize it below.50
50
See New Richmond News v. City of New Richmond, 2015 WI
106, ¶24, 365 Wis. 2d 610, 875 N.W.2d 107 (Abrahamson, J.,
concurring) (describing the past practice of the United States
Supreme Court following the resignation, retirement, or death of
a member of the Court).
(continued)
21
No. 2014AP2431.ssa & awb
¶138 The facts and circumstances of the change in
membership of the court, the status of cases heard in September
and October, and the issues raised by a new justice's joining
the court has been set forth previously.51
¶139 The question of a new justice's participation in cases
upon his or her appointment should, we hope, be approached by
the court and the justices in a descriptive, analytical, and
historical manner, free from divisiveness or offensive
posturing, personal attacks, and false accusations.52
¶140 Engaging in or responding to such personal attacks and
accusations neither sheds light on the inquiry before us nor
promotes public trust and confidence in the court.
Media accounts following the recent death of Justice
Antonin Scalia concur in the descriptions of the practice in the
United States Supreme Court in prior separate writings on this
issue. See Adam Liptak, Deadlocks and Rearguments: What's Ahead
for the Supreme Court, N.Y. Times (Feb. 18, 2016) ("Q. Would a
new justice be able to vote on cases argued before he or she was
confirmed? A. No. Cases in which the current justices were
deadlocked, 4 to 4, would require rearguments to allow a new
justice to participate.") (emphasis added); Adam Liptak,
Scalia's Absence Is Likely to Alter Court's Major Decisions This
Term, N.Y. Times (Feb. 14, 2016); see also Tom Goldstein, Tie
votes will lead to reargument, not affirmance, SCOTUSblog (Feb.
14, 2016, 3:14 PM), http://www.scotusblog.com/2016/02/tie-votes-
will-lead-to-reargument-not-affirmance/.
51
See New Richmond, 365 Wis. 2d 610, ¶7 (Abrahamson, J.,
concurring); State v. Matalonis, 2016 WI 7, ¶70, 366
Wis. 2d 443, 875 N.W.2d 567 (Abrahamson, J., dissenting)
(quoting New Richmond, 365 Wis. 2d 610, ¶7).
52
The election for Justice Rebecca G. Bradley's seat was
held on Tuesday, April 5, 2016.
22
No. 2014AP2431.ssa & awb
¶141 To summarize the historical facts briefly, Justice N.
Patrick Crooks passed away on September 21, 2015. Justice
Rebecca G. Bradley joined the court on October 9, 2015. During
the period between September 8, 2015, and October 9, 2015, when
Justice Rebecca G. Bradley was not a member of the court, the
court heard oral argument and tentatively decided sixteen cases.
See Supreme Court Internal Operating Procedure II.E.53
53
It was announced at oral arguments on September 17, 2015,
and September 18, 2015, that Justice N. Patrick Crooks would not
be attending oral arguments in the six cases argued and
tentatively decided on those dates (including the instant case).
It was announced that Justice N. Patrick Crooks would
participate in these cases by watching oral arguments on
WisconsinEye and discussing the cases in conference via
telephone.
Thus counsel were aware of the nature of Justice N. Patrick
Crooks' participation in the cases argued on September 17, 2015
and September 18, 2015. Counsel did not object.
There is precedent in this court for a member of the court
to do as Justice Crooks explained he would do. There is also
precedent in this court for a member of the court who has not
attended oral argument to decline to participate in deciding the
case.
In contrast, counsel did not know that Justice Rebecca G.
Bradley, who was appointed to the court after oral argument,
would be participating in the cases heard and tentatively
decided prior to her appointment. Until the decisions were
released, counsel had no opportunity to ask for reargument with
Justice Rebecca G. Bradley present or to object to Justice
Rebecca G. Bradley's participation without reargument.
23
No. 2014AP2431.ssa & awb
¶142 In 12 of these cases, Justice Rebecca G. Bradley did
not participate in the decision of the court.54 In one of these
cases, a case before this court on bypass from the court of
appeals, New Richmond News v. City of New Richmond, 2015 WI 106,
¶1, 365 Wis. 2d 610, 875 N.W.2d 107, the court's per curiam
decision explained the new justice's non-participation as
follows: "The court is equally divided on whether to affirm or
reverse the judgment of the circuit court for St. Croix County.
This case was argued before the full court; however, Justice N.
Patrick Crooks passed away prior to the court's decision.
Justice Rebecca G. Bradley was appointed to the court after the
court's decision, and therefore did not participate."55
54
See In re Marriage of Meister, 2016 WI 22, ¶49, ___
Wis. 2d ___, 876 N.W.2d 746; State v. Smith, 2016 WI 23, ¶59,
___ Wis. 2d ___, ___ N.W.2d ___; United Food & Commercial
Workers Union v. Hormel Foods Corp., 2016 WI 13, ¶107, 367
Wis. 2d 131, 876 N.W.2d 99; Wis. Pharmacal Co., LLC v. Neb.
Cultures of Cal., Inc., 2016 WI 14, ¶86, 367 Wis. 2d 221, 876
N.W.2d 72; Burgraff v. Menard, Inc., 2016 WI 11, ¶81, 367
Wis. 2d 50, 875 N.W.2d 596; Hoffer Props., LLC v. DOT, 2016 WI
5, ¶48, 366 Wis. 2d 372, 874 N.W.2d 533; State v. Valadez, 2016
WI 4, ¶56, 366 Wis. 2d 332, 874 N.W.2d 514; State v. Dumstrey,
2016 WI 3, ¶52, 366 Wis. 2d 64, 873 N.W.2d 502; Winnebago Cnty.
v. Christopher S., 2016 WI 1, ¶58, 366 Wis. 2d 1, ___
N.W.2d ___; Wis. Dep't of Justice v. Wis. Dep't of Workforce
Dev., 2015 WI 114, ¶60, 365 Wis. 2d 694, 875 N.W.2d 545; New
Richmond News, 365 Wis. 2d 610, ¶4; State v. Iverson, 2015 WI
101, ¶62, 365 Wis. 2d 302, 871 N.W.2d 661.
55
New Richmond, 365 Wis. 2d 610, ¶1. The per curiam
opinion went on to explain that Justice Shirley S. Abrahamson,
Justice Ann Walsh Bradley, and Justice David T. Prosser would
affirm. Chief Justice Patience Drake Roggensack, Justice
Annette Kingsland Ziegler, and Justice Michael Gableman would
reverse.
24
No. 2014AP2431.ssa & awb
¶143 In three of these cases (including the instant case),
Justice Rebecca G. Bradley participated in the decisions.56
¶144 One of these three cases in which Justice Rebecca G.
Bradley participated, namely State v. Matalonis, 2016 WI 7, 366
Wis. 2d 443, 875 N.W.2d 567, was a 4-3 decision overturning the
decision of the court of appeals. A motion for reconsideration
was filed alleging that Justice Rebecca G. Bradley's
participation violated the defendant's equal protection and due
process rights. The motion was denied.
¶145 In two of the cases in which Justice Rebecca G.
Bradley participated, namely the instant case and State v.
Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d 619, the final
vote in each of the two cases was 5-2. Thus, the instant case
and Parisi present different fact situations than Matalonis, in
which Justice Rebecca G. Bradley appears to have cast the
deciding vote, and New Richmond, a bypass case in which the
justices were evenly divided without Justice Rebecca G.
Bradley's participation.
¶146 In prior writings reviewing the experiences and
practices of this court and the United States Supreme Court,
when a new justice joins the court, the conclusion was as
follows: A new justice who did not participate in oral argument
56
The other two cases are State v. Parisi, 2016 WI 10, 367
Wis. 2d 1, 875 N.W.2d 619; and State v. Matalonis, 2016 WI 7,
366 Wis. 2d 443, 875 N.W.2d 567.
A decision in one case (argued, like the instant case, on
September 17, 2015) has not yet been released: State v. LeMere,
No. 2013AP2433-CR.
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No. 2014AP2431.ssa & awb
does not participate in the decision of the case unless the
other members of the court decide that the case should be
reargued.57 The new justice may participate in reargument.
¶147 Taking a different and contrasting approach to this
prior precedent, Justice Rebecca G. Bradley explains in her
concurrence in the instant case that the new justice alone, not
the court, decides whether the new justice will participate in a
case that has been argued and tentatively decided before the new
justice joined the court.
¶148 Justice Rebecca G. Bradley's public explanation of
whether she will participate in cases argued but not decided
before her appointment to the court and her explanation for her
decision to avoid reargument are useful and important
information for the bench, bar, and public. It sets a new
precedent that informs and guides future practices of this
court. In sum, it is beneficial to finally have Justice Rebecca
Bradley's public explanation in writing as part of the court's
record.
* * * *
¶149 We conclude that the majority opinion, without special
justification, departs from a unanimous, workable, and settled
precedent of this court, Waukesha County v. Steven H., 2000 WI
57Audio recordings of oral arguments in this court have
been available for many years. Likewise, audio recordings of
oral arguments in the United States Supreme Court have been
available since 1955. See Oyez, http://www.oyez.org/about
("[Oyez] is a complete and authoritative source for all of the
Court's audio since the installation of a recording system in
October 1955.").
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No. 2014AP2431.ssa & awb
28, 233 Wis. 2d 344, 607 N.W.2d 607, and unjustly terminates the
parental rights of Juanita A., a single mother with cognitive
difficulties, to her son, Matthew D. In so doing, the majority
opinion withdraws language in Steven H. adopting the "last
order" notice rule and replaces it with an "at least one order"
notice rule.58
¶150 The majority opinion provides no "special"
justification for departing from precedent. The only change
since Steven H. is in the membership of this court.
¶151 For the reasons set forth, we dissent and write
separately.
58
See majority op., ¶17.
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No. 2014AP2431.ssa & awb
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