On Point: 7. Substantive due process

State v. Kiwana L., 2014AP2306, District 1, 1/13/15 (1-judge decision; ineligible for publication); case activity

Kiwana L.’s substantive due process rights were not violated by the conditions set by the circuit court for return of her daughter Jasmine because those conditions were narrowly tailored to address her mental health issues; thus, the termination of her parental rights based on continuing CHIPS grounds under § 48.415(2) was proper.

Portage County DHHS v. Julie G., 2014AP1057, District 4, 7/31/14 (1-judge; ineligible for publication); case activity

The record shows Julie received the warnings required under § 48.356 even though the relevant notice form did not have her signature. In addition, Julie’s substantive due process rights were not violated because the conditions for return of her child imposed by the continuing CHIPS order were not impossible for her to meet despite her incarceration.

Dane County DHS v. Latasha G., 2014AP45 & 2014AP46, District 4, 4/3/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2014AP45; 2014AP46

Latasha argues she was determined to be unfit based on a condition that was impossible for her to satisfy due to an order in criminal cases barring any contact with the girls. Thus, the termination violated her substantive due process rights under Kenosha Cnty.

State v. Lawanda R., 2013AP1661, District 1/4, 1/16/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court properly found that a parent with serious cognitive disabilities (she “functions at the level of a child less than ten years old” (¶8)) was unfit under § 48.415(2) on the sole basis that she failed to meet the conditions established by a continuing CHIPS order for the return of Will,

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner.

Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision

Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.

Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right,