2020 WI App 39

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2019AP894

Complete Title of Case: 

†Petition for Review filed

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.

Opinion Filed: May 13, 2020

Submitted on Briefs: September 18, 2019

Oral Argument: 

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the 

briefs of Thomas B. Aquino, assistant public defender of Madison.

Respondent

ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the 

brief of Sharon G. McIlquham, assistant corporation counsel, 

Eau Claire.
2020 WI App 39

COURT OF APPEALS

DECISION

DATED AND FILED

May 13, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP894 Cir. Ct. No. 2018TP10

STATE OF WISCONSIN IN COURT OF APPEALS

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.

APPEAL from order of the circuit court for Eau Claire County: 

EMILY M. LONG, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ. 
No. 2019AP894

2

¶1 HRUZ, J. Sophie1appeals a nonfinal order in this termination of 

parental rights (TPR) case.2 That order denied Sophie’s motion asking the circuit 

court to determine that the Eau Claire County Department of Human Services (the 

Department) must prove the elements of the continuing CHIPS ground for a TPR as 

previously set forth in WIS. STAT. § 48.415(2)(a) (2015-16), as opposed to the 

elements now set forth in § 48.415(2)(a) (2017-18).3

¶2 In June 2016, Sophie’s son, Tyler, was placed outside of her home. 

In August 2016, the circuit court entered a CHIPS order, and Tyler’s placement 

continued with the issuance of subsequent CHIPS orders. At the initial out-of-home 

placement hearing and at four subsequent permanency plan review hearings, the 

court, as required by statute, gave Sophie written and oral notice that her parental 

rights could be terminated pursuant to the continuing CHIPS ground. As relevant 

here, that ground previously required the Department to prove there was a 

substantial likelihood that Sophie would not meet the conditions established for the 

return of Tyler to her home within nine months following a TPR fact-finding 

hearing. See WIS. STAT. § 48.415(2)(a)3. (2015-16).

 

1

 For ease of reading, we refer to S.E. and her son, T.L.E.-C., using pseudonyms, rather 

than by their initials.

2

 By this court’s June 26, 2019 order, we granted Sophie leave to appeal a nonfinal order. 

See WIS. STAT. § 808.03(2) (2017-18). This appeal was converted from a one-judge appeal to a 

three-judge appeal by the December 16, 2019 order of the Chief Judge of the Court of Appeals. 

See WIS. STAT. § 752.31(3) (2017-18); WIS. STAT. RULE 809.41(3) (2017-18).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 

3

 We follow the lead of the parties and prior case law by referring to WIS. STAT.

§ 48.415(2)(a) as the “continuing CHIPS” ground for the termination of parental rights. See, e.g., 

St. Croix Cty. DHHS v. Michael D., 2016 WI 35, ¶1, 368 Wis. 2d 170, 880 N.W.2d 107. “CHIPS” 

is a commonly used acronym for “child in need of protection or services.” See id., ¶6. Also, for 

ease of reading and consistency with prior case law, we refer to WIS. STAT. § 48.415(2)(a) (2015-

16) as the “prior version,” and to § 48.415(2)(a) (2017-18) as the “amended version.” See Dane 

Cty. DHS v. J.R., 2020 WI App 5, ¶2 n.3, 390 Wis. 2d 326, 938 N.W.2d 614 (2019).
No. 2019AP894

3

¶3 Our legislature changed the continuing CHIPS ground’s elements in 

April 2018 when it passed 2017 Wis. Act 256, § 1, which amended WIS. STAT.

§ 48.415(2)(a)3. (2015-16). The amended version eliminated a prospective analysis 

under the continuing CHIPS ground for a TPR if the child had already been placed 

outside the parent’s home for at least “15 out of the most recent 22 months.” 

Compare § 48.415(2)(a)3. (2015-16), with § 48.415(2)(a)3. (2017-18). A few 

months after the amendment took effect, the Department petitioned to terminate 

Sophie’s parental rights based on the continuing CHIPS ground. The petition stated 

the continuing CHIPS elements set forth by the amended version of the statute.

¶4 Sophie asserts the amended version of WIS. STAT. § 48.415(2)(a) 

should not be used as a basis to terminate her parental rights because the notice she 

was given when the CHIPS orders were first issued included the continuing CHIPS 

elements set forth in the prior version of the statute. For the reasons set forth, we 

disagree. In Sophie’s TPR proceedings, the circuit court must employ the current, 

amended version of § 48.415(2)(a). We also disagree with Sophie that applying the 

amended version of the statute to her circumstances violates her constitutional rights 

to due process. We therefore affirm the order of the circuit court.

BACKGROUND

¶5 The following facts are undisputed. In June 2016, then-three-year-old 

Tyler was removed from Sophie’s home pursuant to a temporary physical custody 

order. On August 17, 2016, Tyler was found to be a child in need of protection or 

services. Written notice of potential grounds for termination of Sophie’s parental 

rights was provided to her with that CHIPS order, as required by WIS. STAT. § 

48.356(2). Presumably, the CHIPS order listed continuing CHIPS as one of the 
No. 2019AP894

4

potential TPR grounds.4 Effective April 6, 2018, the legislature changed one of the 

elements of the continuing CHIPS ground by amending WIS. STAT. § 48.415(2)(a)3. 

See 2017 Wis. Act 256, § 1. This change is explained further below. 

¶6 In June 2018, the Department petitioned for involuntary termination 

of Sophie’s parental rights to Tyler, alleging the ground of abandonment. In 

September 2018, the Department filed an amended TPR petition, alleging two 

grounds for termination: (1) abandonment; and (2) continuing CHIPS. See WIS.

STAT. § 48.415(1)(a)2., (2)(a). Both parties appear to agree that another CHIPS 

order was issued in October 2018 that included TPR warnings referring to the 

amended version of WIS. STAT. § 48.415(2)(a), although that order is not in the 

appellate record. 

¶7 In April 2019, prior to a trial in the grounds phase, the parties disputed 

whether the TPR case should proceed under the prior or the amended version of the 

continuing CHIPS statute. Sophie argued that the prior version should apply, 

whereas the Department and Tyler’s guardian ad litem argued in favor of the 

 

4

 Both parties agree that Sophie received the TPR warnings as required by statute in 2016, 

but neither the August 2016 nor subsequent CHIPS orders are in the record on appeal. While the 

CHIPS orders would have aided our review of this case, their absence does not foreclose our review 

of the issues on appeal.

We further note that the Department’s statement of the case in its response brief has only 

one citation to the appellate record. The Department’s violations of WIS. STAT.

RULES 809.19(1)(d) and 809.19(3)(a)2. are problematic and have unnecessarily hindered our 

review of Sophie’s appeal. In addition, the Department’s brief refers repeatedly to matters in the 

CHIPS action involving Sophie, even though most records of the CHIPS action are not part of the 

appellate record in this TPR action. These omissions further violate RULES 809.19(1)(d) and 

809.19(3)(a)2. We admonish the Department that future violations of the rules of appellate 

procedure may result in sanctions.
No. 2019AP894

5

amended version. On May 6, 2019, the circuit court determined that the case would 

proceed under the amended version. Sophie now appeals.5

DISCUSSION

¶8 When our legislature amended WIS. STAT. § 48.415(2)(a)3. in April 

2018, it changed the elements that the Department must prove at the grounds phase 

of a TPR proceeding. The prior version of subdivision 3. required the petitioner to 

show, among other things, that there was a “substantial likelihood” that the parent 

would not meet “the conditions established for the safe return of the child to the 

home” within “the 9-month period following the fact-finding hearing.” We have 

previously referred to this requirement, which assesses the prospective likelihood 

of the child’s return, as the “9-month failure to meet requirement.” See Dane Cty. 

DHS v. J.R., 2020 WI App 5, ¶13, 390 Wis. 2d 326, 938 N.W.2d 614 (2019). 

¶9 Our legislature eliminated the 9-month failure to meet requirement 

when it amended WIS. STAT. § 48.415(2)(a)3. See 2017 Wis. Act 256, § 1. 

Subdivision 3. now provides:

[I]f the child has been placed outside the home for less than 

15 of the most recent 22 months, [the petitioner must show] 

that there is a substantial likelihood that the parent will not 

meet the[] conditions [established for the safe return of the 

child to the parent’s home] 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.

 

5

 After briefing concluded in this matter, we issued our decision in J.R. That decision was 

not initially recommended for publication, but it has since been published. Sophie submitted a 

letter, consistent with WIS. STAT. RULE 809.19(10), asserting, among other things, that the “facts 

and holdings” of J.R. are distinct from the issues in her case.
No. 2019AP894

6

Sec. 48.415(2)(a)3. Following Sophie’s lead, we generally refer to this “amended” 

period as the “15-out-of-22-month timeframe.” 

¶10 Sophie does not request dismissal of the TPR petition altogether. 

Instead, she argues the Department should not be able to rely on the amended 

version of WIS. STAT. § 48.415(2)(a) to terminate her parental rights.6 Rather, she 

contends the Department should proceed under the prior, 9-month failure to meet 

requirement. Sophie generally makes three different arguments in this regard. She 

argues, first, that use of the amended version would be an impermissible retroactive 

application of the statute, and, second, that such an application would violate her 

due process rights. Third, she argues, as a matter of statutory construction, that if 

the amended statute applies in her TPR proceeding, the 15-out-of-22-month 

 

6

 In her supplemental letter to this court addressing J.R., Sophie “clarifie[d] that she is not 

arguing that the [Department] must have pursued a TPR under the old law, but that it could have.” 

She faults the Department for waiting until WIS. STAT. § 48.415(2)(a)3. was amended in April 2018 

before petitioning for a TPR when the Department’s “cause of action accrued in February of 2017,” 

and she contends “that the cause of action survived the April 2018 amendments” under WIS. STAT.

§ 990.04. This “clarification” is problematic for a few reasons. 

First, if Sophie intended her clarification only to bolster an argument as to why WIS. STAT.

§ 990.04 applies in her case, that argument is developed for the first time outside of her brief-inchief, and it is minimally developed at best. We generally do not consider such arguments. See 

A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). 

Additionally, we previously decided in J.R. that § 990.04 does not require application of the prior 

version of WIS. STAT. § 48.415(2)(a). J.R., 390 Wis. 2d 326, ¶¶19-27. For reasons explained 

further in this opinion, we disagree with Sophie’s assertion that material distinctions exist between 

her case and the parent in J.R.

Second, if Sophie intended her clarification to more generally bolster her appellate 

arguments regarding the validity of the circuit court’s use of the amended version of the statute, the 

clarification is inconsistent with her arguments in her appellate briefs. In those briefs, Sophie 

repeatedly advocates that the Department “must” have pursued a TPR under the prior version of 

WIS. STAT. § 48.415(2)(a). In any event, whether Sophie is arguing that the Department must have, 

could have, or should have pursued a TPR under the prior version of the statute is immaterial 

because, for the reasons set forth in our opinion, we reject all of Sophie’s arguments.
No. 2019AP894

7

timeframe period can only begin with a CHIPS order including notice of that time 

period limitation. We addressed the first two issues she raises in our recent decision 

in J.R., and we begin with those arguments.7

I. Retroactivity

¶11 Sophie makes two separate, but related, arguments asserting that if the 

amended version of WIS. STAT. § 48.415(2)(a) were employed, it would be an 

impermissible retroactive application of the statute. She maintains that as a matter 

of statutory interpretation, statutes must be “construed to avoid retroactive 

application of a substantive change in the law.” Here, she contends the amended 

version would impair her right to parent her child—which she contends is a vested 

right. Relatedly, Sophie also argues that a retroactive application of the amended 

version would violate her rights to due process because it would deprive her of a 

constitutionally protected right to parent her child without “fair notice.” 

¶12 The critical question, therefore, is whether employing the amended 

version of WIS. STAT. § 48.415(2)(a) in the current posture of Sophie’s TPR case is 

actually a retroactive application of that statute. The interpretation and application 

of a statute present questions of law that we review de novo. Brown Cty. Human 

Servs. v. B.P., 2019 WI App 18, ¶10, 386 Wis. 2d 557, 927 N.W.2d 560. Similarly, 

we review de novo whether a legislative act violates due process. Neiman v. 

American Nat’l Prop. & Cas. Co., 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 

160; see also J.R., 390 Wis. 2d 326, ¶51 (“Whether a statute, as applied, violates 

 

7

 We wish to make clear that we offer no opinion on whether the Department has proven 

the continuing CHIPS ground in this case; that role is for the fact finder at the grounds phase of 

Sophie’s TPR proceedings. See Sheboygan Cty. DHHS v. Julie A.B., 2002 WI 95, ¶24, 255 

Wis. 2d 170, 648 N.W.2d 402. This interlocutory appeal occurred prior to the trial in the grounds 

phase and concerns only the statutory standard that must be applied in any ensuing trial. 
No. 2019AP894

8

the challenger’s constitutional rights is a question of law this court reviews de 

novo.”).

¶13 Sophie’s arguments are nearly identical to those raised by the parent 

in J.R. Similar to Sophie, J.R.’s children were placed outside of his home pursuant 

to CHIPS orders that were issued before the legislature amended WIS. STAT.

§ 48.415(2)(a). See J.R., 390 Wis. 2d 326, ¶5. After the amended version went into 

effect, the Dane County Department of Human Services petitioned for an order 

terminating J.R.’s parental rights to his children. Id., ¶7. On appeal, J.R. argued 

that if the amended version was utilized during his TPR proceedings, it would 

constitute a retroactive application of that statute and thereby violate his due process 

rights. Id., ¶¶28-30. We explained that courts use a two-step test to determine 

whether a statute operates retroactively. See id., ¶30. 

¶14 Relevant to Sophie’s arguments in this case, the second step of the 

retroactivity analysis requires us to determine whether the amended version of WIS.

STAT. § 48.415(2)(a) does, in fact, operate retroactively, notwithstanding the 

absence of any legislative directive regarding retroactivity. J.R., 390 Wis. 2d 326, 

¶¶32, 44. We concluded the application of the amended version of § 48.415(2)(a) 

in a TPR case was not retroactive when CHIPS proceedings began before the 

legislature amended the continuing CHIPS ground.8 J.R., 390 Wis. 2d 326, ¶¶30-

32, 41, 44, 50.

 

8

 Sophie appears to misunderstand when a statute truly operates “retroactively.” It is true 

that the facts underlying the continuing CHIPS ground are based on Sophie’s conduct that occurred 

before the legislature amended WIS. STAT. § 48.415(2)(a)3. A statute does not, however, operate 

retroactively “simply because it is applied in a case arising from conduct antedating the statute’s 

enactment.” J.R., 390 Wis. 2d 326, ¶44 (citation omitted). Merely because Sophie labels the 

application of the amended statute in this case as “retroactive” does not make it so.
No. 2019AP894

9

¶15 Sophie also argues the amended version of WIS. STAT. § 48.415(2)(a) 

operates retroactively because she has a “fundamental right to parent” her child, and 

if the amended version of § 48.415(2)(a) is used in her case, its “retroactive 

application would impair [her] vested rights.” This argument, however, was 

addressed in—and now foreclosed by—our decision in J.R., the relevant facts of 

which are not materially different than here, including on the issue of the effect on 

one’s parental rights.9 We are generally bound by our own published precedent. 

See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). Given our 

binding precedent in J.R., we therefore reject Sophie’s claim that using the amended 

version of § 48.415(2)(a) would impermissibly make the statute operate 

retroactively.

II. Additional Due Process Arguments

¶16 Sophie argues the purported “retroactive application” of the amended 

version of WIS. STAT. § 48.415(2)(a) in her TPR proceedings “violates [her] due 

process rights” in other ways. In doing so, Sophie makes an “as-applied” due 

process challenge, maintaining that if the amended version of § 48.415(2)(a) is used, 

 

9

 Specifically, in J.R., we called into question the same premise Sophie now advances—

i.e., that the “fundamental liberty interest” of a parent “is the same” as a “vested right” regardless 

of the existing relationship between the parent and child. See J.R., 390 Wis. 2d 326, ¶48 (citing 

Tammy W-G. v. Jacob T., 2011 WI 30, ¶52, 333 Wis. 2d 273, 797 N.W.2d 854 (“Parents who have 

developed a relationship with their children have a fundamental liberty interest in the ‘care, 

custody, and control of their children.’” (emphasis added and citation omitted)); and Monroe Cty. 

DHS v. Kelli B., 2004 WI 48, ¶23, 271 Wis. 2d 51, 678 N.W.2d 831 (holding that a parent with a 

“substantial relationship” with his or her child has a “fundamental liberty interest” in parenting)). 

Similar to J.R., Sophie does no more than assume that her recognized fundamental liberty interest 

as a parent is the same as a “vested right,” regardless of the underlying fact that her child had been 

removed from her home and found to be in need of protection or services.
No. 2019AP894

10

she would be subject to fundamentally unfair procedures, including the lack of fair 

notice.10

¶17 Due process is implicated in TPR proceedings because when “the 

State moves to destroy weakened familial bonds, it must provide parents with 

fundamentally fair procedures.” Steven V. v. Kelley H., 2004 WI 47, ¶23, 271 

Wis. 2d 1, 678 N.W.2d 856 (quoting Santosky v. Kramer, 455 U.S. 745, 753-54 

(1982)). The State provides fundamentally fair procedures by providing parents a 

hearing, prescribing the petitioner’s burden of proof as “clear and convincing 

evidence,” id., and providing fair notice of any substantive change to a parent’s 

conduct that could lead to a TPR, see State v. Patricia A.P., 195 Wis. 2d 855, 863, 

537 N.W.2d 47 (Ct. App. 1995).

¶18 As was the case with the parent in J.R., Sophie’s as-applied due 

process challenge is premised on—and derivative of—her contention that the 

amended version of WIS. STAT. § 48.415(2)(a) has retroactive application to her 

TPR proceedings. See J.R., 390 Wis. 2d 326, ¶52. As just explained, this court has 

already concluded that applying the amended version to Sophie’s case is not an 

improper retroactive application of the statute. 

¶19 Further, J.R.’s rejection of the parent’s as-applied challenge in that 

case is binding precedent here because there are no material factual differences 

between Sophie and J.R. Both parents had children placed outside of their 

 

10

 WISCONSIN STAT. § 893.825(1) and (2) require that when a statute is alleged to be 

unconstitutional, the attorney general, speaker of the assembly, president of the senate and senate 

majority leader shall be served with a “copy of the proceeding,” and the attorney general, assembly, 

senate, and joint committee on legislative organization shall be entitled to be heard in that action. 

The effective date of § 893.825 was December 16, 2018, which was after the Department petitioned 

to terminate Sophie’s parental rights. See 2017 Wis. Act 369, § 101. Nonetheless, Sophie provided 

a copy of her brief-in-chief to those entities, and none of them entered an appearance in the matter. 
No. 2019AP894

11

respective homes pursuant to CHIPS orders issued before the legislature amended 

WIS. STAT. § 48.415(2)(a). See J.R., 390 Wis. 2d 326, ¶5. Those CHIPS orders and 

subsequent CHIPS orders continuing the children’s placement outside of the home 

each contained the required written notice of potential grounds for a TPR. See id. 

The CHIPS orders J.R. received before § 48.415(2)(a) was amended had listed 

continuing CHIPS, generally, as a potential ground for TPR, J.R., 390 Wis. 2d 326, 

¶5, and there is nothing in the record indicating—nor does Sophie claim—that 

something different occurred in her case. Likewise, CHIPS orders were issued in 

both cases after the amended statute went into effect, and those orders included 

notice of the amended continuing CHIPS ground.11 See id., ¶6. The respective 

petitioners in each case petitioned for TPR after the legislature amended 

§ 48.415(2)(a)3., ultimately alleging continuing CHIPS as a ground for TPR. See 

J.R., 390 Wis. 2d 326, ¶5. In all, we conclude our holding in J.R. that the 

application of the amended version of § 48.415(2)(a) did not violate J.R.’s due 

 

11

 In Sophie’s supplemental letter to this court, she contends she “has a much stronger due 

process notice argument than J.R.” because the first CHIPS order that gave her notice of the 

amended continuing CHIPS ground and its corresponding statutory elements was issued after the 

Department petitioned to terminate her parental rights. Conversely, in J.R.’s case, CHIPS orders 

were issued with the updated warnings in before Dane County initiated TPR proceedings. J.R., 

390 Wis. 2d 326, ¶6.

Sophie’s argument is unpersuasive because she does not explain why this distinction makes 

a difference. In any event, we also disagree that she has a “stronger” due process challenge under 

her factual circumstances, primarily because there is not a substantial change in the type of conduct 

that may lead to a TPR between the prior version and the amended version of WIS. STAT.

§ 48.415(2)(a)3. What matters is that the child has been placed outside of the home in need of 

protection or services for an extended period of time. See infra, ¶¶22-23.
No. 2019AP894

12

process rights applies with equal force to Sophie.12 See J.R., 390 Wis. 2d 326, ¶¶51-

52. Her due process arguments therefore lack merit.

¶20 Although our decision in J.R. is arguably dispositive of Sophie’s due 

process argument, we address an argument she raises regarding due process that J.R. 

did not. Sophie argues that applying the amended version of WIS. STAT.

§ 48.415(2)(a)3. violates her right to procedural due process under our decision in

Patricia A.P. In that case, we held that when a parent is warned his or her parental 

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.” Patricia 

A.P., 195 Wis. 2d at 863 (emphasis added). Sophie contends such a “substantial 

change” occurred here and she was not given “fair notice” of that substantial change. 

We disagree.

¶21 In Patricia A.P., we observed that the legislature changed the “quality

of the very nature of the acts leading to termination.” Id. at 864 (emphasis added). 

 

12

 In J.R., we observed that one of the flaws in J.R.’s arguments was that he did not show 

that Dane County would “be able to establish the continuing CHIPS ground in the TPR proceeding 

under the amended version of [WIS. STAT.] § 48.415(2)(a)3. but not under the prior version.” J.R., 

390 Wis. 2d 326, ¶53. The same holds true for Sophie here. 

Sophie alleges that “applying the new version of [WIS. STAT.] § 48.415(2)(a)3. to [her] and 

parents like her whose children were placed out of home under CHIPS orders entered prior to the 

enactment of the new statute violates procedural due process” and that she had a “settled 

expectation that she would be able to present argument as to the 9-month-forward-looking element 

should the government attempt to terminate her rights.” However, Sophie presents no facts 

demonstrating that the Department is able to meet its burden of proof under the amended version 

of § 48.415(2)(a) but could not do so under the prior version. See J.R., 390 Wis. 2d 326, ¶53. 

Sophie consequently “has not demonstrated that application of the prior version 

of ... § 48.415(2)(a), as compared to application of the amended version of § 48.415(2)(a) would 

make a difference” to the result in her TPR proceedings. See J.R., 390 Wis. 2d 326, ¶53 (citing 

Society Ins. v. LIRC, 2010 WI 68, ¶27 n.9, 326 Wis. 2d 444, 786 N.W.2d 385; and State v. Wood, 

2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63).
No. 2019AP894

13

The old version of the continuing CHIPS ground at issue in that case provided that 

a parent would lose his or her parental rights “only for culpable conduct—

substantial neglect or willful refusal—or for inability to meet the conditions 

established for the return of the child.” Id. (citing WIS. STAT. § 48.415(2)(c) (1991-

92)). The new version, by contrast, required “no showing of neglect, willfulness or 

inability.” Id. Instead, a parent faced termination of rights if he or she “failed to 

demonstrate substantial progress toward meeting the conditions established for the 

return of the child.” Id. (quoting WIS. STAT. § 48.415(2)(c) (1993-94)).

¶22 Here, the legislature’s amendment of WIS. STAT. § 48.415(2)(a)3. did 

not substantially change the type of conduct that may lead to a TPR under 

para. (2)(a). Similarly, the amended version of the statute did not change the 

“quality of the very nature of the acts” that could lead to the termination of Sophie’s 

parental rights. See Patricia A.P., 195 Wis. 2d at 864. Both versions of the statute 

relate to circumstances involving: (1) a child in need of protection or services being 

placed outside of the parent’s home for an extended period of time; (2) the 

responsible agency having made a reasonable effort to provide the services ordered; 

and (3) the parent’s ability to meet the conditions for the child’s return. Compare

§ 48.415(2)(a) (2015-16), with § 48.415(2)(a) (2017-18). That the amended version 

narrowed the scenarios by which a parent must progress toward meeting conditions 

of return does not change the fact that these are the three circumstances subjecting 

a parent to a TPR based on continuing CHIPS.

¶23 In other words, the change between the prior version and the amended 

version of the statute is not substantive, including in the sense articulated in Patricia 
No. 2019AP894

14

A.P.13 Whereas the prior version required a prospective determination of whether a 

parent was likely to meet the conditions for return of the child within the nine 

months following the fact-finding hearing, the amended version eliminates the need 

for a prospective analysis as long as the child has already been outside the parent’s 

home for “15 of the most recent 22 months.” Compare WIS. STAT. § 48.415(2)(a)3. 

(2015-16), with § 48.415(2)(a)3. (2017-18). In cases where the out-of-home 

placement has already satisfied the 15-out-of-22-month timeframe, the amended 

statute merely requires the petitioner to prove that the parent has failed to meet the 

conditions for the safe return of the child. See § 48.415(2)(a)3. (2017-18). Under 

both versions of the statute, however, the conduct at issue is the same—the parent’s 

ability or inability to meet the conditions for return of the child during an extended 

period of time—and, under both versions, the child must have been placed outside 

of the parent’s home for at least six months. Thus, the legislature’s amendment of 

§ 48.415(2)(a)3. did not substantially change the type of conduct that may lead to 

the termination of Sophie’s parental rights.

¶24 Relatedly, Sophie also argues—vaguely and without citation to 

authority—that the change between the prior and the amended version of WIS. STAT.

§ 48.415(2)(a)3. violated her procedural due process right to “fair notice” because 

she “had a settled expectation that she would be able to present argument as to the 

9-month forward-looking element should the government attempt to terminate her 

rights.” In other words, Sophie maintains that even if Tyler has already long been 

 

13

 Notably, we observe that this change makes the amended version of WIS. STAT.

§ 48.415(2)(a)3. mirror the procedural timeframe in WIS. STAT. § 48.417(1)(a), which provides that 

a state or county actor is required to file a TPR petition regarding a child who has been placed 

outside the home pursuant to a CHIPS order “for 15 of the most recent 22 months.”
No. 2019AP894

15

outside of her home, she still must have some time to remedy her failures to secure 

his return after the Department filed the TPR petition. 

¶25 Sophie’s argument lacks merit because she has not shown that her 

“settled expectation” to make or prove a particular argument is, in fact, a due process 

right. As best we can discern, her argument in this regard is dependent on her 

foregoing attempted application of Patricia A.P. to her circumstances, which we 

have just rejected. In short, Sophie has no due process right to have her parental 

rights terminated under a particular set of elements that satisfies the TPR ground of 

continuing CHIPS.14 

III. Statutory Interpretation

¶26 Finally, Sophie raises a statutory interpretation argument we did not 

address in J.R. and that is distinct from her retroactivity and due process arguments. 

She asserts that under the plain meaning of the amended version of WIS. STAT.

§ 48.415(2)(a)3., “the 15-out-of-22 month timeframe begins with the CHIPS order 

including the 15-out-of-22 month warning, not a prior order that does not include 

the warning.” 

¶27 Relevant to this case, the circuit court issued a CHIPS order in August 

2016, and that order included TPR warnings referencing the prior version of WIS.

STAT. § 48.415(2)(a). After the legislature amended the continuing CHIPS ground 

in April 2018, the Department filed an amended TPR petition alleging continuing 

 

14

 In J.R., we observed that J.R. had not explained “how or why the changes made in the 

amended version of the statute, in themselves, take away his purported right to parent.” J.R., 390 

Wis. 2d 326, ¶49. That comment applies with equal force here. The critical point is that, at all 

times, Tyler was lawfully found to be a child in need of protection or services, and each CHIPS 

order properly provided Sophie with written notice of that circumstance being a potential ground 

for the termination of her parental rights, as that ground’s elements were prescribed by statute when 

the CHIPS order was issued.
No. 2019AP894

16

CHIPS in September 2018. Then, in October 2018, the court issued a new CHIPS 

order that included TPR warnings referencing the amended version of 

§ 48.415(2)(a) and the elements that the Department needed to prove under that 

version. In Sophie’s view of the relevant statutory provisions, the “15-out-of-22-

month timeframe cannot begin with the August 2016 CHIPS order,” but, rather, 

must begin in October 2018 when a CHIPS order was first issued including the TPR 

warnings referencing the amended version of the statute.

¶28 Our canons of statutory interpretation are well known and need not be 

repeated here. See, e.g., B.P., 386 Wis. 2d 557, ¶10 (citing State ex rel. Kalal v. 

Circuit Court for Dane Cty., 2004 WI 58, ¶¶44-49, 271 Wis. 2d 633, 681 N.W.2d 

110). As relevant to Sophie’s arguments, however, we note that we give statutory 

language its common, ordinary and accepted meaning, and we cannot read language 

into a statute that does not exist in the statute’s text. See id.

¶29 The plain meaning of the amended version of WIS. STAT.

§ 48.415(2)(a) permits its use as a ground for termination in Sophie’s circumstances. 

In particular, § 48.415(2)(a)3.’s language does not support Sophie’s interpretation 

that the 15-out-of-22-month timeframe could not have begun at the issuance of the 

August 2016 CHIPS order.

¶30 As relevant to Sophie’s arguments, the amended version of the statute 

provides that the continuing CHIPS ground “shall be established” if the Department 

can prove:

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 ... containing the notice required by 

s. 48.356(2) ....

 ....
No. 2019AP894

17

3. That 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 spent outside 

the home as an unborn child; that 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, that 

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.

WIS. STAT. § 48.415(2)(a)1., 3. Subdivision 3. requires the Department to prove 

that a child has been placed outside of his or her parent’s home pursuant to an order 

listed in subdivision 1., and one of those enumerated orders is a CHIPS order. There 

is no dispute that such placement occurred in this case. 

¶31 WISCONSIN STAT. § 48.415(2)(a)1., in turn, requires that the CHIPS 

order contain the “notice” required by WIS. STAT. § 48.356(2), a subsection of the 

CHIPS proceedings provisions within the Children’s Code. Section 48.356(2) must 

be read in conjunction with § 48.356(1), and together they state:

(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 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 ... outside the home or 

denies visitation under sub. (1) shall notify the parent or 

parents ... of the information specified under sub. (1).

¶32 Reading WIS. STAT. § 48.356 in conjunction with WIS. STAT.

§ 48.415(2)(a)1. and 3., the plain meaning of these statutory provisions permits use 

of the amended version of § 48.415(2)(a) in Sophie’s TPR proceedings. Nothing 
No. 2019AP894

18

within §§ 48.356 or 48.415(2)(a) prohibits a TPR petitioner from relying on a 

CHIPS order issued before the legislature amended § 48.415(2)(a)3., regardless of 

the nature of the continuing CHIPS warnings regarding a potential TPR contained 

in that order. What matters is the parent having been warned that his or her parental 

rights could be terminated on the basis of a continuing CHIPS—a child being 

protectively placed outside of the parent’s home for an extended period of time.

¶33 To explain, what the continuing CHIPS ground requires, under either 

the prior or amended version of the statute, is a valid CHIPS order having been 

issued under the CHIPS statutes and in compliance with the “duty of court to warn” 

provisions found in WIS. STAT. § 48.356. Once proof of these requirements has 

been satisfied, the fact finder then independently assesses whether the petitioner has 

proven the remaining statutory elements for a TPR due to a continuing CHIPS.15 

The amended version of WIS. STAT. § 48.415(2)(a) contains no language prohibiting 

a TPR petitioner from relying on a valid CHIPS order issued before the amended 

version’s effective date when attempting to prove the continuing CHIPS ground 

during the grounds phase of a TPR proceeding.

¶34 Sophie argues the references in WIS. STAT. § 48.415(2)(a)1. and 3. to 

WIS. STAT. § 48.356’s “duty of court to warn” provision “provide[] that the initial 

 

15

 That means the fact finder must generally determine: (1) whether the agency 

responsible for the child’s care has made a “reasonable effort” to provide the services ordered by 

the circuit court, see WIS. STAT. § 48.415(2)(a)2.b.; (2) the parent “has failed” to meet the 

conditions established for the child’s safe return, see § 48.415(2)(a)3.; (3) the child “has been 

placed outside the home for a cumulative total period of 6 months or longer,” id.; (4) whether the 

child has been placed outside the home “for less than 15 of the most recent 22 months,” id.; and (5) 

if the child has been placed outside the home “for less than 15 out of the most recent 22 months,”

whether there is a “substantial likelihood” the parent will not meet the conditions for the child’s 

return as of the date on which the child will have been placed outside the home “for 15 out of the 

most recent 22 months,” id. Given that it appears undisputed Tyler had been already placed outside 

of the home for more than “15 out of the most recent 22 months” by the time the Department filed 

the TPR petition, it appears only the first and second elements described above may be in dispute.
No. 2019AP894

19

6[-]month waiting period begins with an order including the 15-out-of-22-month 

notice” and, therefore, a CHIPS order “that does not include this ‘ground[] for 

termination’ does not have the notice required of an order under Subdivision 1.” 

Sophie’s argument lacks merit for a few reasons.

¶35 To begin, she confuses a TPR ground with its corresponding elements. 

“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 once—received 

written notice to that effect.” See St. Croix Cty. DHHS v. Michael D., 2016 WI 35, 

¶17, 368 Wis. 2d 170, 880 N.W.2d 107. The 15-out-of-22-month timeframe, 

however, is not one of the twelve TPR grounds provided by statute; rather, it is one 

of the elements a petitioner must prove if it alleges a parent’s rights should be 

terminated under para. (a) of the continuing CHIPS ground for a TPR. 

¶36 Again, WIS. STAT. §§ 48.356 and 48.415(2)(a) require only that a 

parent be given notice of which TPR grounds may be used to terminate his or her 

parental rights. Section 48.415 enumerates only twelve grounds for TPR. See WIS.

STAT. § 48.415(1)-(10). Each ground, in turn, has elements “that shall be 

established” by the petitioning party, id., but these elements are not the TPR grounds 

themselves.16 Accordingly, for Sophie’s argument to be correct, she must read 

 

16

 To be sure, the duty to warn prescribed by WIS. STAT. § 48.356—which we 

acknowledge includes the requirement that the parent be informed “of the conditions necessary for 

the child ... to be returned to the home”—serves a necessary function within TPR proceedings. 

But the duty to warn is not an element of the continuing CHIPS ground beyond the fact that the 

applicable CHIPS order(s) must have contained such a warning. See WIS. STAT. § 48.415(2)(a)1. 

A parent’s notification of the conditions for return of the child and the grounds under which his or 

her parental rights might be subject to termination dictate the validity of the CHIPS order itself and 

of the CHIPS proceedings. The notice given under the duty-to-warn provision does not, in and of 

itself, limit the ability for a petitioner to rely on a particular set of elements for the continuing 

CHIPS ground.
No. 2019AP894

20

language requiring notice of a particular TPR ground’s elements into the statutes, 

which contravenes a cardinal rule of statutory interpretation. See State v. Hinkle, 

2019 WI 96, ¶24, 389 Wis. 2d 1, 935 N.W.2d 271. 

¶37 Sophie also conflates the petitioner’s and the circuit court’s 

procedural obligations under the TPR statute with the substantive elements a 

petitioner must prove. As we previously explained, due process requires that when 

“the State moves to destroy weakened familial bonds, it must provide the parents 

with fundamentally fair procedures.” Steven V., 271 Wis. 2d 1, ¶23 (quoting 

Santosky, 455 U.S. at 753-54). These procedures include providing a hearing, 

prescribing a petitioner’s burden of proof as “clear and convincing evidence,” id., 

and providing fair notice of any substantive change to a parent’s conduct that could 

lead to a TPR, see Patricia A.P., 195 Wis. 2d at 863. Outside of providing these 

procedures, however, the legislature unquestionably has the prerogative to 

determine the grounds of unfitness upon which to initiate TPR proceedings. See 

supra, ¶¶24-25; cf. Brown Cty. v. Shannon R., 2005 WI 60, ¶60, 286 Wis. 2d 278, 

706 N.W.2d 269 (“The State has an urgent interest in a termination of parental rights 

proceeding to protect the welfare of the children.”). 

¶38 Here, the legislature changed the elements a TPR petitioner must 

prove—not the procedural requirements for initiating a TPR case—when it 

amended WIS. STAT. § 48.415(2)(a)3. Nothing in the plain language of the amended 

statute suggests a petitioner may not initiate a TPR case under the new statute when 

the case’s underlying facts occurred before the statute was amended. Sophie’s 

contrary assertion therefore fails.

¶39 Sophie additionally argues that use of the word “placed” in the 

amended version of WIS. STAT. § 48.415(2)(a)3. shows that the 15-out-of-22-month 
No. 2019AP894

21

timeframe begins with a CHIPS order that includes that timeframe’s warning. The 

prior version of subdivision 3. read, in pertinent part, that a petitioner must prove 

“the child has been outside the home for a ... period of 6 months” pursuant to a 

CHIPS order. (Emphasis added.) The amended version of subdivision 3. now 

provides that a petitioner must prove “the child has been placed outside the home 

for a ... period of 6 months” pursuant to a CHIPS order. (Emphasis added.) Sophie 

maintains, for several reasons, that because the legislature modified subdivision 3. 

to include the verb “placed,” “the most natural reading of the entire provision is that 

each subsequent use of the term ‘placed’ ... is likewise modified by the term 

‘pursuant to an order listed under [subdivision] 1.’”—e.g., a CHIPS order including 

the elements of the amended version of the continuing CHIPS ground. We are not 

persuaded.

¶40 All of Sophie’s arguments in this regard rely upon a faulty premise. 

Namely, she contends the amended version of WIS. STAT. § 48.415(2)(a) prohibits 

a TPR petitioner from relying on a valid CHIPS order issued prior to the amended 

version of § 48.415(2)(a), even if that prior order contained the requisite notice 

generally stating the parent’s parental rights may be terminated under the continuing 

CHIPS ground but not specifically containing notice of the amended version’s 15-

out-of-22-month timeframe. This premise, as we explain above, is erroneous. For 

this reason alone, Sophie’s remaining statutory interpretation arguments lack merit. 

¶41 In any event, there is no reasonable basis to interpret “placed” and 

“pursuant to an order listed under subd. 1.” as operating differently than the phrase 

“has been outside the home” operated with “pursuant to such orders” under the prior 
No. 2019AP894

22

version.17 All the relevant language does—and has always done—is require that the 

child has been “placed outside the home” or has been “outside the home” pursuant 

to a CHIPS order. Indeed, the orders to which the continuing CHIPS ground refers 

are those that “place” the child outside the home. In all, Sophie reads too much into 

the legislature’s insertion of “placed” in WIS. STAT. § 48.415(2)(a)3. 

 

17

 “Placed” operates as a passive-voice verb, in which the entity doing the placing is 

unstated in the sentence. Clearly, that entity is a governmental agency or court, as children do not 

“place” themselves outside of their parents’ homes. 
No. 2019AP894

23

CONCLUSION

¶42 We conclude, as matter of statutory construction, that nothing within 

the prior or amended version of WIS. STAT. § 48.415(2)(a) prohibits the Department 

from pursuing a TPR against Sophie using the elements for the continuing CHIPS 

ground found in the amended version of the statute. Accordingly, the circuit court 

did not err by determining that Sophie’s TPR proceedings must employ the current, 

amended version of § 48.415(2)(a). We also disagree with Sophie that applying the 

amended version of the statute to her circumstances violates her constitutional rights 

to due process. We therefore affirm the order of the circuit court.

By the Court.—Order affirmed.