2021 WI 56

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP894

COMPLETE TITLE: In re the termination of parental rights to 

T. L. E.-C., a person under the age of 18:

Eau Claire County Department of Human Services,

 Petitioner-Respondent,

 v.

S. E.,

 Respondent-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 392 Wis. 2d 726,946 N.W.2d 155

PDC No:2020 WI App 39 - Published 

OPINION FILED: June 10, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 25, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Eau Claire 

JUDGE: Emily Long 

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in Which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, 

JJ., joined. DALLET, J., filed a dissenting opinion in which ANN 

WALSH BRADLEY and KAROFSKY, JJ., joined. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the respondent-appellant-petitioner, there were briefs 

filed by Thomas B. Aquino, assistant state public defender. There 

was an oral argument by Thomas B. Aquino.

For the petitioner-respondent, there was a brief filed by 

Sharon L.G. McIlquham, assistant corporation counsel. There was an 

oral argument by Sharon L.G. McIlquham.
2021 WI 56

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP894

(L.C. No. 2018TP10)

STATE OF WISCONSIN : IN SUPREME COURT

In re the termination of parental rights to 

T.L.E.-C., a person under the age of 18:

Eau Claire County Department of Human Services,

 Petitioner-Respondent,

 v.

S.E.,

 Respondent-Appellant-Petitioner.

FILED

JUN 10, 2021

Sheila T. Reiff

Clerk of Supreme Court

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, 

JJ., joined. DALLET, J., filed a dissenting opinion in which 

ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

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

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

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

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

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

physical health of the child is seriously endangered, the circuit 

court may order the child removed from the parental home. Wis. 
No. 2019AP894

2

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

"instability and impermanence in family relationships are contrary 

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

eliminating the need for children to wait unreasonable periods of 

time for their parents to correct the conditions that prevent their 

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

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

petition to terminate parental rights if the child has remained in 

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

§ 48.415(2)(a)3.

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

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

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

whenever appropriate, by strengthening family life through 

assisting parents and the expectant mothers of unborn children, 

whenever appropriate, in fulfilling their responsibilities as 

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

achieving that objective, the statutes task "[t]he courts and 

agencies responsible for child welfare, while assuring that a 

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

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

in changing any circumstances in the home which might harm the 

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

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

 

1 Unless otherwise indicated, all references to the Wisconsin 

Statutes are to the 2017-18 version.
No. 2019AP894

3

taken into custody." Id. Conditions with which the parent must 

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

forth in the CHIPS dispositional order. Wis. Stat. 

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

circumstances which led to the removal of the child from the 

parental home, Wisconsin law requires a petition for termination 

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

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

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

federal law, specifically the Adoption and Safe Families Act 

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

89, 111 Stat. 2115.2

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

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

involuntary termination of parental rights. This statutory 

amendment occurred during the pendency of Sophie's court 

proceedings involving her child, Tyler, who was removed from 

Sophie's home and adjudged CHIPS in 2016.3 Sophie's CHIPS case 

commenced under the 2016 version of the statute, and two months 

after the 2018 statutory amendment, the Eau Claire Department of 

Human Services (the Department) filed a petition to terminate 

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

 

2 The Adoption and Safe Families Act is codified in noncontiguous sections in Title 42 of the United States Code.

3 For ease of reading, we use the pseudonym "Sophie" for S.E. 

(the mother) and "Tyler" for T.L.E.-C. (the child).
No. 2019AP894

4

among other things, eliminated consideration by the factfinder of 

the likelihood the parent would meet the conditions for return of 

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

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

months."4 Sophie challenged the applicability of the amended 

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

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

agreed with the circuit court.6

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

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

to run only after Sophie received written notice of the amended 

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

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

received the initial CHIPS order with written notice referencing

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

process rights.

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

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

(2017-18), began to run when Sophie received written notice 

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

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

 

4 For brevity, we refer to the amended language in Wis. Stat. 

§ 48.415(2)(a)3 (2017-18) as the "15 out of 22 months" timeframe.

5 The Honorable Judge Emily M. Long, Eau Claire County Circuit 

Court, presided.

6 Eau Claire Cnty. DHS v. S.E., 2020 WI App 39, 392 

Wis. 2d 726, 946 N.W.2d 155.
No. 2019AP894

5

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

court of appeals.

I. BACKGROUND

¶6 In May 2016, the Department received a report of a threeyear-old child, Tyler, wandering unattended on a campground with 

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

the time for methamphetamine possession. In June 2016, the 

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

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

he tested positive for methamphetamine. Tyler's foster parents 

observed that he showed significant signs of neglect. In August 

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

protection or services.

¶7 Under that initial CHIPS order, the circuit court 

provided Sophie with written notice of the potential grounds for 

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

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

identified continuing CHIPS as a possible ground for termination.7 

The notice referenced the three sub-parts of continuing CHIPS that 

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

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

 

7 The appellate record does not include the initial CHIPS 

order from August 2016. Nonetheless, both parties agree that the 

order contained written notice of the TPR warnings as required by 

Wis. Stat. § 48.356(2). The parties further agree that the notice 

listed "continuing CHIPS" among potential grounds for termination 

of parental rights and referenced the prior version of Wis. Stat. 

§ 48.415(2)(a)3 (2015-16).
No. 2019AP894

6

terminate parental rights under the continuing CHIPS ground for 

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

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

parent would not meet the conditions established for the safe 

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

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

initial hearing and at four subsequent court hearings, the circuit 

court gave Sophie written and oral notice that her parental rights 

could be terminated due to continuing CHIPS.

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

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

occasions for drug possession. She also absconded from probation 

and refused to participate in the court-ordered services offered 

by the Department that would have aided Sophie in meeting the 

conditions for reunification with Tyler. According to the 

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

¶9 In April 2018, the legislature amended the third subpart of the continuing CHIPS statute. See 2017 Wis. Act 256, § 1; 

Wis. Stat. § 48.415(2)(a)3 (2017-18). The amended version, among 

other things, eliminated any prospective consideration of the 

likelihood the parent would meet the conditions for the safe return

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

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

months."

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

terminate Sophie's parental rights to Tyler. The petition cited

abandonment as the ground for termination. In September 2018, the 
No. 2019AP894

7

Department amended its petition to add continuing CHIPS as a ground 

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

in October 2018 the circuit court entered another CHIPS order; 

this time, when the circuit court identified continuing CHIPS as 

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

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

Stat. § 48.415(2)(a)3 (2017-18).8

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

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

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

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

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

 

8 The appellate record does not contain the October 2018 CHIPS 

order. However, the parties agree that the order contained TPR 

warnings as required by Wis. Stat. § 48.356(2). The parties 

further agree that the order identified continuing CHIPS as a 

potential ground for termination and referenced the amended 

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

9 As background, "[t]ermination of parental rights 

proceedings involve a two-step process." Tammy W-G v. Jacob T., 

2011 WI 30, ¶18, 333 Wis. 2d 273, 797 N.W.2d 854. The first step 

involves a factfinding hearing. Id. "The purpose of the factfinding hearing is to determine . . . whether grounds exist for 

the termination of parental rights" in contested cases. Wis. Stat. 

§ 48.424(1). "The focus of this step is whether the § 48.415 

ground has been met, not the child's best interest." Tammy W-G, 

333 Wis. 2d 273, ¶18.

"The second-step, the dispositional hearing, occurs only 

after the factfinder finds a Wis. Stat. § 48.415 ground has been 

proved and the [circuit] court has made a finding of unfitness." 

Id., ¶19 (citation omitted). "In this step, the best interest of 

the child is the 'prevailing factor.' If the [circuit] court finds 

a termination of parental rights is in the child's best interest, 

termination should be ordered." Id. (citations omitted).
No. 2019AP894

8

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

circuit court ruled that the amended version applied, noting:

[Sophie] had the current warnings, the warnings that 

would be for the current law on multiple occasions with 

significant time to adjust to those warnings, that this 

has been going on for quite some time with those new 

updated warnings being given.

Given the purpose of the statute, given the stated, 

intended, desired outcome – that is permanence of the 

child – I am going to find that the new law will apply 

in this case.

The circuit court also concluded that the "15 out of 22 months" 

timeframe began to run in 2016 when Sophie received the initial 

CHIPS order and written notice.

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

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

of appeals granted Sophie's petition for interlocutory appeal and 

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

for review.

II. STANDARD OF REVIEW

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

construction, the "15 out of 22 months" timeframe began to run 

only after Sophie received written notice of the amended version 

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

requires us to interpret Wisconsin's statutes. The interpretation 

and application of statutes present questions of law that we review 

independently, benefitting from the analyses of the circuit court 

and court of appeals. State v. Stephenson, 2020 WI 92, ¶18, 394 
No. 2019AP894

9

Wis. 2d 703, 951 N.W.2d 819 (internal quotations and citations 

omitted).

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

months" timeframe in 2016 when Sophie received the initial CHIPS 

order and written notice referencing the prior version of Wis. 

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

Whether a statute or its application violates an individual's 

constitutional rights is a question of law this court also reviews 

independently, benefitting from the analyses of the circuit court 

and court of appeals. See State v. Smith, 2010 WI 16, ¶8, 323 

Wis. 2d 377, 780 N.W.2d 90; Dane Cnty. DHS v. J.R., 2020 WI App 5, 

¶51, 390 Wis. 2d 326, 938 N.W.2d 614.

III. DISCUSSION

A. CHIPS Orders and Relevant Statutes

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

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

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

Wisconsin Statutes require the circuit court to orally inform the 

parent of any grounds for termination of parental rights which may 

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

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

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

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

warnings." St. Croix Cnty. DHS v. Michael D., 2016 WI 35, ¶16, 

368 Wis. 2d 170, 880 N.W.2d 107. "Only subsection (2) is 

referenced in the TPR based on continuing CHIPS statute." Id.; 

see Wis. Stat. § 48.415(2)(a)1 (mandating that orders must 
No. 2019AP894

10

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

part, Wis. Stat. § 48.356 reads:

(1) Whenever the court orders a child to be placed 

outside his or her home, . . . the court shall 

orally inform the parent or parents who appear in 

court . . . of any grounds for termination of 

parental rights under s. 48.415 which may be 

applicable and of the conditions necessary for the 

child . . . to be returned to the home . . . .

(2) In addition to the notice required under sub. (1), 

any written order which places a 

child . . . outside the home . . . shall notify 

the parent or parents . . . of the information 

specified under sub. (1).

(Emphases added.)

¶16 The CHIPS dispositional order shall also list conditions 

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

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

standard form order contains a "Notice Concerning Grounds to 

Terminate Parental Rights" listing 12 potential grounds for

termination of parental rights, which correspond to the "grounds 

for involuntary termination of parental rights" enumerated in Wis. 

Stat. § 48.415.11 The form order details the evidence necessary 

 

10 A current version of the standard form dispositional order 

can be accessed at the following link: https://www.wicourts.gov/

formdisplay/JC-1611T.pdf?formNumber=JC-1611T&formType=Form&forma

tId=2&language=en. 

11 Technically, the standard form dispositional order lists 

13 separate grounds for termination of parental rights because the 

form identifies "continuing CHIPS of an unborn child" as a separate 

ground. Wisconsin Stat. § 48.415 embeds continuing CHIPS of an 

unborn child within the continuing CHIPS ground for involuntary 

termination of parental rights, as one of 12 statutory grounds.
No. 2019AP894

11

to establish each ground for termination. Boxes precede each 

ground, and if different circumstances may establish a particular 

ground, boxes precede each array of evidence that is independently 

sufficient to prove that ground. The form contemplates that the 

circuit court will place a checkmark next to those grounds which 

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

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

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

¶17 The ground for termination of parental rights at issue 

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

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

on continuing CHIPS, the factfinder must determine that the 

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

proven:

1. [The] child has been adjudged to be a child or an 

unborn child in need of protection or services and 

placed, or continued in a placement, outside his or 

her home pursuant to one or more court orders under 

s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345, 

938.357, 938.363 or 938.365 containing the notice 

required by s. 48.356(2) or 938.356(2).

. . . .

2.b. [The] agency responsible for the care of the 

child and the family or of the unborn child and 

expectant mother has made a reasonable effort to 

provide the services ordered by the court.

3. [The] child has been placed outside the home for a 

cumulative total period of 6 months or longer pursuant 

to an order listed under subd. 1., not including time 

 

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

§ 48.415(2)(am), which is not at issue in this case.
No. 2019AP894

12

spent outside the home as an unborn child; . . . the 

parent has failed to meet the conditions established 

for the safe return of the child to the home; and, if 

the child has been placed outside the home for less 

than 15 of the most recent 22 months, . . . there is 

a substantial likelihood that the parent will not meet 

these conditions as of the date on which the child 

will have been placed outside the home for 15 of the 

most recent 22 months, not including any period during 

which the child was a runaway from the out-of-home 

placement or was residing in a trial reunification 

home.

§ 48.415(2)(a) (2017-18) (emphases added).

¶18 Previously, the third sub-part read:

[The] child has been outside the home for a cumulative 

total period of 6 months or longer pursuant to such 

orders not including time spent outside the home as an 

unborn child; and . . . the parent has failed to meet 

the conditions established for the safe return of the 

child to the home and there is a substantial likelihood 

that the parent will not meet these conditions within 

the 9-month period following the fact-finding hearing

under s. 48.424.

Wis. Stat. § 48.415(2)(a)3 (2015-16) (emphasis added). This prior 

version of the statute required the factfinder to look forward 

nine months from the date of the TPR factfinding hearing to 

determine whether the parent had a "substantial likelihood" of 

meeting the conditions established for the safe return of her 

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

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

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

parent satisfying the court-ordered conditions for the safe return 

of the child to the parental home.

¶19 In April 2018, the legislature amended this language,

reconfiguring the timeframe within which the factfinder may 
No. 2019AP894

13

consider the likelihood of the parent meeting the court-ordered 

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

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

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

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

factfinder consider whether there "is a substantial likelihood 

that the parent will not meet [the] conditions as of the date on 

which the child will have been placed outside the home for 15 of 

the most recent 22 months." If the child has been placed outside 

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

subpart is satisfied by evidence proving that the parent failed to 

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

Through this statutory amendment, the legislature eliminated the 

petitioner's obligation to show a substantial likelihood that the 

parent will not meet the conditions of return within the nine 

months following the factfinding hearing if the child has been in 

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

with Wis. Stat. § 48.417(1)(a), which requires entities like the 

Department to file a TPR action for any child who "has been placed 

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

months."

B. Statutory Construction

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

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

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

run only after Sophie received written notice of the amended 

version of Wis. Stat. § 48.415(2)(a)3 (2017-18). We disagree. 
No. 2019AP894

14

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

courts to provide parents with oral and written notice, 

respectively, of any "grounds for termination of parental rights 

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

Proving continuing CHIPS at a TPR trial requires establishing the 

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

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

be a child or an unborn child in need of protection or services 

and placed, or continued in a placement, outside his or her home 

pursuant to one or more court orders . . . containing the notice 

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

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

providing notice to the parent of potential grounds for TPR means 

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

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

Without more explanation, the parent would be left guessing what 

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

ground for TPR necessarily encompasses the sub-parts comprising 

that ground. See Ground, Black's Law Dictionary (11th ed. 2019)

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

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

parental rights can be terminated for continuing CHIPS conveys 

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

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

no understanding of the reasons they may lose their parental 

rights.
No. 2019AP894

15

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

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

fulfilling their responsibilities as parents." Wis. Stat. 

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

the conditions for the safe return of their children requires 

providing them with notice of the particular circumstances under 

which a CHIPS adjudication may result in the termination of their 

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

Cnty., 2004 WI 58, ¶¶48-49, 271 Wis. 2d 633, 681 N.W.2d 110 ("Some 

statutes contain explicit statements of legislative purpose," 

which are "perfectly relevant to a plain-meaning 

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

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

circumstances that may trigger a termination of parental rights. 

The standard form dispositional order reflects this.13

¶24 While notification "of any grounds for termination of 

parental rights" necessarily includes the statutory sub-parts 

comprising each ground, circuit courts must provide notice of only 

those grounds which "may be applicable" at the time the order is 

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

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

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

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

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

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

 

13 See footnote 10 supra. 
No. 2019AP894

16

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

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

Kelly M., 2011 WI App 69, ¶24, 333 Wis. 2d 719, 798 N.W.2d 697 

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

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

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

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

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

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

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

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

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

The parent would not have received an explicit warning that her 

parental rights could be terminated under that ground but that 

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

proceeding against her.

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

must provide notice of grounds which will be applicable; this would 

assign the circuit courts an impossible task. When a circuit court 

removes a child from the parental home or continues a child's outof-home placement, the legislature requires the circuit court to 

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

and such notice is a prerequisite to the initiation of TPR 

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

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

adding words not chosen by the legislature." Michael D., 368 

Wis. 2d 170, ¶17.
No. 2019AP894

17

¶26 Sophie argues that in order for the Department to 

initiate TPR proceedings against her based on the amended 

continuing CHIPS grounds, she would first need to receive TPR 

warnings, in her CHIPS proceedings, reflecting the amended 

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

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

Sophie received written notice that she could lose her parental 

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

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

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

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

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

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

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

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

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

terminating Sophie's parental rights was satisfied because the 

CHIPS orders "contain[ed] the notice required by s. 48.356(2)" as 

mandated by § 48.415(2)(a)1.

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

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

that each time Sophie received TPR warnings, the circuit court 

orders contained the requisite notice under Wis. Stat. 

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

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

were given. Moreover, the statutorily-required warnings

contemplate that different grounds may form the basis for a TPR 
No. 2019AP894

18

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

needed to identify only the grounds for termination that existed 

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

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

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

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

dispositional order underscores the potential for different 

grounds supporting a future TPR proceeding by cautioning the parent 

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

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

Accordingly, Sophie was put on notice that different grounds could 

support a TPR action against her.

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

with our precedent explaining the textual purpose of providing 

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

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

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

with which the parents must comply for a child to be returned to 

the home. The notice is also meant to forewarn parents that their 

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

2000 WI 28, ¶37, 233 Wis. 2d 344, 607 N.W.2d 607 (modified on other 

grounds by Michael D., 368 Wis. 2d 170). Sophie's notices complied 

with all statutory mandates, explained the conditions for the safe 

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

parental rights were in jeopardy. The circuit court properly

applied the statutory language in effect at the time TPR 

proceedings commenced. Because Tyler had been placed outside of 
No. 2019AP894

19

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

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

required to establish a substantial likelihood that Sophie would 

not in the future meet the conditions established for the safe 

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

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

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

permanency for him.

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

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

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

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

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

paramount consideration. This chapter shall be liberally 

construed to effectuate the following express legislative 

purposes:

(a) The courts and agencies responsible for child 

welfare should also recognize that instability and 

impermanence in family relationships are contrary 

to the welfare of children and should therefore 

recognize the importance of eliminating the need 

for children to wait unreasonable periods of time

for their parents to correct the conditions that 

prevent their safe return to the family.

. . . .

(gr) To allow for the termination of parental rights at 

the earliest possible time after rehabilitation and 

reunification efforts are discontinued in 

accordance with this chapter and termination of 

parental rights is in the best interest of the 

child."
No. 2019AP894

20

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

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

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

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

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

being on notice that her parental rights could be terminated as 

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

three years have passed since Sophie received TPR warnings 

reflecting the amended continuing CHIPS ground. Wisconsin law 

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

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

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

¶30 Accepting Sophie's argument would require us to 

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

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

of the TPR petition. Wisconsin Statutes preclude us from doing 

so. Under Wisconsin law, such instability and impermanence is 

contrary to Tyler's welfare. Wis. Stat. § 48.01(1). For this 

reason, both Wisconsin law as well as federal law require the 

commencement of TPR proceedings once a child has spent 15 months 

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

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

the permanence mandate for children like Tyler who have spent more 

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

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

of a text should be interpreted in a way that renders them 

compatible, not contradictory." Antonin Scalia & Bryan A. Garner, 
No. 2019AP894

21

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

v. Hemp, 2014 WI 129, ¶29, 359 Wis. 2d 320, 856 N.W.2d 811 

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

we construe exist in harmony. Sophie received the statutorilyrequired notice of a potential TPR both before and after the 2018 

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

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

care is simply not compatible with the statutory mandate to achieve 

permanence for her son.

C. Due Process

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

months" timeframe in 2016 when Sophie received the initial CHIPS 

order and written notice referencing the prior version of Wis. 

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

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

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

the third sub-part of continuing CHIPS would constitute an 

impermissible retroactive application of § 48.415(2)(a) (2017-

18).14 Additionally, Sophie maintains that applying the amended 

 

14 Although Sophie raises retroactivity as part of her 

statutory construction argument, retroactivity is better suited 

for a due process analysis. At least in part, "[t]he 

antiretroactivity principle finds expression [in the Due Process 

Clause]." Landgraf v. USI Film Prod., 511 U.S. 244, 266 (1994). 

As the United States Supreme Court has noted, "[t]he Due Process 

Clause . . . protects the interests in fair notice and repose that 

may be compromised by retroactive legislation." Id. Accordingly, 

we address Sophie's retroactivity argument as part of her due 

process claim. See Dane Cnty. DHS v. J.R., 2020 WI App 5, ¶28, 

390 Wis. 2d 326, 938 N.W.2d 614 (addressing a retroactivity 

argument as part of the petitioner's due process claim).
No. 2019AP894

22

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

constitutionally protected right to parent her child, without 

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

1. Retroactive Application

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

prospectively unless the statutory language reveals, by express 

language or necessary implication, an intent that it apply 

retroactively." Schulz v. Ystad, 155 Wis. 2d 574, 597, 456 

N.W.2d 312 (1990) (citation omitted). This presumption is rooted 

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

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

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

statute does not operate 'retrospectively' merely because it is 

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

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

USI Film Prod., 511 U.S. 244, 269 (1994). "Rather, the court must 

ask whether the new provision attaches new legal consequences to 

events completed before its enactment." Id. at 269-70.

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

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

applying the amended version of a statute constitutes a retroactive 

application. Matthies v. Positive Safety Mfg. Co., 2001 WI 82, 

¶¶16, 19, 244 Wis. 2d 720, 628 N.W.2d 842; J.R., 390 Wis. 2d 326, 

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

expressly noted its intent that the statute be applied 

retroactively." J.R., 390 Wis. 2d 326, ¶31. In the second step, 

we determine "whether the amended version of [the 
No. 2019AP894

23

statute] . . . has a retroactive effect when applied." Id., ¶32. 

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

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

Sophie.

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

legislature did not express its intent that the amended version of 

Wis. Stat. § 48.415(2)(a) be applied retroactively." Id., ¶31. 

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

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

that the statute applies retroactively.

¶35 Second, application of the amended statute has no 

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

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

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

consequences to events completed before its enactment."15 

Landgraf, 511 U.S. at 269-70. While it is true that a statute may 

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

"imposes a new duty" with respect to past conduct, application of 

§ 48.415(2)(a)3 (2017-18) to Sophie's case does neither. State v. 

Chrysler Outboard Corp., 219 Wis. 2d 130, 172, 580 N.W.2d 203 

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

timeframe did not create any new legal obligation or consequence. 

Regardless of the legislature's amendment, Sophie remained subject 

 

15 Unlike her argument before the court of appeals, Sophie 

makes clear that she is not asserting a "vested rights" theory of 

retroactivity. See Lands' End, Inc. v. City of Dodgeville, 2016 

WI 64, ¶65 n.30, 370 Wis. 2d 500, 881 N.W.2d 702. Accordingly, we 

need not address that argument.
No. 2019AP894

24

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

in the amended statute changed the conditions established for the 

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

create or alter any legal consequence affecting Sophie; her 

parental rights were in jeopardy before and after the statutory 

amendment solely because she failed to meet the court-ordered 

conditions for the return of Tyler to her home.

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

to the statute eliminated the factfinder's consideration of the 

nine-month period following a factfinding hearing in a TPR 

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

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

responsibilities under the CHIPS dispositional order remained the 

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

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

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

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

the Department's obligation to file a TPR petition once Tyler spent 

15 months in out-of-home care. In other words, both before and 

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

rights were at risk if she failed to meet the conditions 

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

Department was legally obligated to file a TPR petition should she 

fail to meet those conditions within 15 months of Tyler's out-ofhome placement.
No. 2019AP894

25

2. "Fair Notice"

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

violated because she was deprived of her constitutionally 

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

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

A.P., 195 Wis. 2d 855, 537 N.W.2d 47 (Ct. App. 1995). According 

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

time a court terminates parental rights for conduct different than 

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

Patricia A.P. is inaccurate.

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

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

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

grounds for termination she received" substantially differed from 

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

857-58. The prior version of Wis. Stat. § 48.415(2)——the one for 

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

has substantially neglected, willfully refused or been unable to 

meet the conditions established for the return of the child to the 

home." Id. at 859. The amended version of the statute——the one 

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

required proof that "the parent has failed to demonstrate 

substantial progress towards meeting the conditions established 

for the return of the child to the home." Id. at 860. Due to the 

substantial differences between the two versions, the court of 

appeals held that Patricia's due process rights were violated. In 

relevant part, the court of appeals stated that "when the State 
No. 2019AP894

26

warns a parent that his or her rights to a child may be lost 

because of the parent's future conduct, if the State substantially

changes the type of conduct that may lead to the loss of rights 

without notice to the parent, the State applies a fundamentally 

unfair procedure." Id. at 863 (emphasis added). The court of 

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

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

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

Id. at 864 (emphases added).

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

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

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

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

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

rights. Id. at 863-64. In fact, the 2018 amendment to 

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

already explained, the legislature's amendment aligned Wisconsin 

law with federal law under ASFA with respect to children who have

been placed outside the home for more than 15 of the most recent 

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

parental rights must prove that the parent failed to meet the 

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

not show a substantial likelihood that the parent will not meet 

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

nine months following the factfinding hearing. Under both the 

prior and amended versions of the statute, the past conduct of the 

parent triggering the TPR petition remains the same: the parent 
No. 2019AP894

27

has failed to meet the conditions established for the safe return 

of the child to the home.

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

case, the legislature had removed all language pertaining to a 

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

willfulness, or inability" of the parent. Id. at 864. In light 

of the substantive differences between the legislative changes at 

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

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

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

after the 2018 amendment, Sophie received fair notice of the 

potential deprivation of her constitutionally protected right to 

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

conditions for the safe return of Tyler to her home.

IV. CONCLUSION

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

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

(2017-18), began to run when Sophie received written notice 

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

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

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

court of appeals.

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

affirmed.
No. 2019AP894.rfd

1

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

Sophie notice of the timeframe for her to complete conditions 

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

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

restrictive timeframe. Because Sophie received no effective 

notice regarding this substantive change, this process violates 

the heightened statutory notice requirement in termination of 

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

therefore respectfully dissent.

I

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

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

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

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

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

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

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

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

CHIPS order listed Tyler's continuing need for protection and 

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

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

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

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

conditions and that there was a substantial likelihood she would 

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

§ 48.415(2)(a)3. (2015-16).

¶44 In April 2018, the legislature altered Wis. Stat. 

§ 48.415(2)(a)3. See 2017 Wis. Act 256. Instead of guaranteeing 
No. 2019AP894.rfd

2

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

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

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

timeframe for Sophie to preserve her parental rights changed and 

became more exacting.

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

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

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

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

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

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

County filed the amended termination petition. Yet the County 

maintains that the stricter timeframe should apply, and that under 

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

at trial.

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

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

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

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

rights therefore cannot be terminated unless the County also proves 

 

1 If the child has not been placed outside the home for a full 

15 of the most recent 22 months, the parent's substantial 

likelihood to meet the safe-return conditions within the remaining 

months is considered at trial. Wis. Stat. § 48.415(2)(a)3. That 

prospective consideration does not apply to Sophie since, as of 

September 2018, Tyler had been placed outside her home for more 

than 15 of the immediately previous 22 months.

2 Initially, the County's stated ground for terminating 

Sophie's parental rights was only "abandonment." See Wis. Stat. 

§ 48.415(1). The County's amended petition added the Continuing 

CHIPS ground at issue in this case.
No. 2019AP894.rfd

3

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

conditions within nine months after trial. She additionally argues 

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

the new law falls short of what constitutional due process 

requires.

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

proceeding under the new law without first notifying Sophie 

violates the formal notice requirement in Wis. Stat. 

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

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

permanently extinguish Sophie's fundamental parental rights in a 

substantively different manner than that detailed in any CHIPS 

order preceding the termination petition.

II

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

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

Lyons, 2019 WI 57, ¶15, 387 Wis. 2d 1, 927 N.W.2d 486 (adding that 

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

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

Granville, 530 U.S. 57, 65 (2000))). The Fourteenth Amendment to 

the United States Constitution prevents the government from 

terminating parental rights absent due process of law. Santosky 

v. Kramer, 455 U.S. 745, 753-54 (1982). Due process requires 

procedural protections to be in place that afford parents a full 

opportunity to defend against losing their parental rights. Brown 

Cnty. v. Shannon R., 2005 WI 160, ¶¶5 n.4, 57, 64, 286 Wis. 2d 278, 

706 N.W.2d 269. In determining what particular process is due, we 

balance private interests against the government's and consider 
No. 2019AP894.rfd

4

the risk of error the current procedures pose in adjudicating those 

private interests. Id., ¶57.

¶49 Because parental rights are fundamental, the private 

interest carries significant weight in the balancing analysis. 

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

at least as great as any criminal penalty. Shannon R., 286 

Wis. 2d 278, ¶¶58-59. The government shares the parents' private 

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

conditions and in "fulfilling their responsibilities as parents." 

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

countervailing interests in minimizing "instability and 

impermanence" and "eliminating the need for children to wait 

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

conditions. Id. But as important as those interests are, they 

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

due process necessary to ensure that every proceeding to terminate 

parental rights is accurate and just. Shannon R., 286 

Wis. 2d 278, ¶¶61-64, 71.

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

legal safeguards" to ensure that parents' "constitutional and 

other legal rights" are protected during termination proceedings. 

See Wis. Stat. § 48.01(ad); State v. Bobby G., 2007 WI 77, ¶63, 

301 Wis. 2d 531, 734 N.W.2d 81. These safeguards accomplish two 

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

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

§ 48.01(1)(a), (ad); Bobby G., 301 Wis. 2d 531, ¶¶57, 63. And 

two, they simultaneously protect the child's best interest because 

that interest is "generally best served" when the child is
No. 2019AP894.rfd

5

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

Dep't Health & Human Servs., 212 Wis. 2d 694, 707, 570 N.W.2d 46 

(Ct. App. 1997), aff'd, 219 Wis. 2d 296, 581 N.W.2d 182 (1998); 

see also Bobby G., 301 Wis. 2d 531, ¶¶57, 63.

¶51 One important safeguard is the formal advance-notice

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

both the grounds under which her parental rights can be terminated 

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

termination. Id. That notice must be delivered first orally and 

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

home. Id. Proof that such formal written notice appeared in "one 

or more" qualifying CHIPS orders is a prerequisite to terminating 

parental rights on Continuing CHIPS grounds. Wis. Stat. 

§ 48.415(2)(a)1.

¶52 For these notice requirements to be constitutionally 

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

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

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

defense." Nnebe v. Daus, 931 F.3d 66, 88 (2d Cir. 2019) (quoting 

Turner v. Rogers, 564 U.S. 431, 447 (2011) and Wolff v. 

McDonnell, 418 U.S. 539, 564 (1974)). As it pertains to notice 

regarding the termination of parental rights, constitutionally 

meaningful notice must include the timeframe applicable to each 

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

Cnty. v. Steven H., 2000 WI 28, ¶37, 233 Wis. 2d 344, 607 

N.W.2d 607. The timeframe is essential to achieving the goal of 

family reunification because CHIPS proceedings regularly involve 

parents confronting challenges related to mental health, substance 
No. 2019AP894.rfd

6

abuse, financial insecurity, or any combination thereof. Such 

major obstacles require long-term planning and sustained 

treatment, neither of which is feasible under shifting conditions 

and timeframes. See State v. Patricia A.P., 195 Wis. 2d 855, 863, 

537 N.W.2d 47 (Ct. App. 1995) ("[I]f the State substantially 

changes the type of conduct that may lead to the loss of rights 

without notice to the parent, the State applies a fundamentally 

unfair procedure.").

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

statutory nor the constitutional notice requirements in any 

meaningful way. The first time Sophie received an order under 

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

requirements was after the County initiated termination 

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

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

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

terminated, as due process requires. See Nnebe, 931 F.3d at 88.

¶54 The majority opinion's approach papers over this 

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

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

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

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

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

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

undermines the very purpose of notice. See DOC v. Schwarz, 2005 

WI 34, ¶20, 279 Wis. 2d 223, 693 N.W.2d 703 ("[C]ourts should not 

add words to a statute to give it a certain meaning."). According 

to the majority, when circumstances change such that a new ground 
No. 2019AP894.rfd

7

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

approach, the County could terminate parental rights without ever 

having given notice of specifically how those rights could be 

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

is "fundamentally hollow" and comes nowhere near allowing parents 

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

931 F.3d at 88. Given this potential for constitutional error, 

particularly in light of the fundamental rights at stake, the 

procedure sanctioned by the majority cannot pass constitutional 

muster.

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

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

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

§ 48.356 and it must be issued before termination proceedings are 

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

rights under the new, stricter timeframe without meaningful notice 

is unconstitutional. For that reason, I respectfully dissent.

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

and JILL J. KAROFSKY join this dissent.
No. 2019AP894.rfd

1