Sheboygan County DH&HS v. Tanya M. B.

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2010 WI 55 SUPREME COURT CASE NO.: OF WISCONSIN 2008AP3065, 2008AP3066, 2008AP3067, 2009AP136, 2009AP137 & 2009AP138 COMPLETE TITLE: In re the termination of parental rights to Elijah W.L., Emily M.L. and Irie A.L., persons under the age of 18: Sheboygan County Department of Health & Human Services, Petitioner-Respondent-Petitioner, v. Tanya M.B., Respondent-Appellant. In re the termination of parental rights to Elijah W.L., Emily M.L. and Irie A.L., persons under the age of 18: Sheboygan County Department of Health & Human Services, Petitioner-Respondent-Petitioner, v. William S.L., Respondent-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 319 Wis. 2d 236, 769 N.W.2d 574 (Ct. App 2009-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: June 29, 2010 December 8, 2009 Circuit Sheboygan Gary Langhoff ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins concurrence. For the petitioner-respondent-petitioner the cause was argued by Mary T. Wagner, assistant district attorney, with whom on the briefs was Joseph DeCecco, district attorney. For the respondent-appellant, Tanya M.B., there was a brief and oral argument by Paul G. Bonneson, and the Law Offices of Paul G. Bonneson, Wauwatosa. For the respondent-appellant, William L., there was a brief and oral argument by Thomas K. Voss, and Thomas K. Voss, Attorney at Law, S.C., Waukesha. 2 2010 WI 55 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP3065, 2008AP3066, 2008AP3067, 2009AP136, 2009AP137 & 2009AP138 (L.C. Nos. 2008TP9, 2008TP10, 2008TP11, 2008TP9A, 2008TP10A & 2008TP11A) STATE OF WISCONSIN : IN SUPREME COURT In re the Termination of Parental Rights to Elijah W.L., Emily M.L. and Irie A.L., Persons Under the Age of 18: FILED Sheboygan County Department of Health & Human Services, JUN 29, 2010 Petitioner-Respondent-Petitioner, David R. Schanker Clerk of Supreme Court v. Tanya M.B., Respondent-Appellant. In re the Termination of Parental Rights to Elijah W.L., Emily M.L. and Irie A.L., Persons Under the Age of 18: Sheboygan County Department of Health & Human Services, Petitioner-Respondent-Petitioner, v. William S.L., Respondent-Appellant. REVIEW of a decision of the court of appeals. Reversed. Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶1 PATIENCE DRAKE ROGGENSACK, J. We review a decision of the court of appeals1 reversing the circuit court's decision2 denying Tanya (collectively, M.B. (Tanya) parents) and William post-verdict motion termination of parental rights petitions. presented for our review: S.L.'s to (William) dismiss the There are two issues (1) Whether the dispositional orders contained "specific services" that are "to be provided to the child and family" as required by Wis. Stat. § 48.355(2)(b)1. (2003-04) or by § 48.355(2)(b)1. (2007-08);3 and (2) whether the Department met its burden at trial of proving that the Department "ma[d]e a reasonable effort to provide the services ordered by the court." We decline to decide whether the 2003 04 or the 2007 08 version of § 48.355(2)(b)1. governs this case because we conclude that under either version of the statute, the dispositional orders are sufficient. The specific services are found in the orders' the directions to Sheboygan County Department of Health and Human Services (Department) to provide supervision, services and case management to the children and family coupled with the orders' detailed conditions that Tanya 1 Sheboygan County Dep't of Health & Human Servs. v. Tanya M.B., Nos. 2008AP3065, 2008AP3066, 2008AP3067, 2009AP136, 2009AP137 and 2009AP138, unpublished slip op. (Wis. Ct. App. Apr. 29, 2009). 2 The Honorable Gary Langhoff of Sheboygan County presided. 3 All subsequent references to the Wisconsin Statutes are to the 2007 08 version unless otherwise indicated. 2 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 and William must meet for the children's return to them. detailed conditions implicitly required the Those Department to provide services necessary to assist the parents in meeting the court ordered conditions for the return of their children. further conclude convincing that evidence the that Department it "ma[d]e proved a by reasonable clear effort We and to provide the services ordered by the court." I. ¶2 BACKGROUND On February 5, 2004, Tanya overdosed on heroin while her three children, Elijah W.L. (Elijah), Emily M.B. (Emily) and Irie A.L. (Irie) (collectively, the children), were in the car with her. The police were contacted and Tanya was revived. William was not present; he was incarcerated at that time. ¶3 As a result of Tanya's overdose and William's incarceration, the Department filed a petition alleging Elijah, Emily and Irie were children in need of protection or services (CHIPS). On March 25, 2004, a disposition hearing was held and the circuit court found all three children in need of protection or services on the grounds of parental neglect pursuant to Wis. Stat. § 48.13(10). The court entered a one-year dispositional order4 for each of the three children placing them under the supervision of the Department. orders, the children Under the original dispositional remained in 4 the home with Tanya and Throughout the proceedings, the orders have been referred to as "dispositional orders," "CHIPS dispositional orders" and "CHIPS orders." We use these terms interchangeably to refer to orders finding the children in need of protection or services. 3 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 William, who lived with Tanya's mother, Connie. The dispositional orders were amended on December 17, 2004, to place the children out of the home, but with Connie, because both William and Tanya were incarcerated. ¶4 The dispositional orders set forth the detailed conditions to be met by Tanya and William for return of their children. The conditions were separated into three categories and the specific conditions pertaining to each category were listed under the heading "Explanation of Provision." ¶5 The first category "Alcohol and other drug." of the conditions of return is Such conditions were as follows: Tanya B[.] and William L[.] will complete any recommended alcohol or drug abuse programs[,] . . . attend an A[lcohol and] O[ther] D[rug] A[ssessment] . . . if it is scheduled and they will meet with the [social] worker to talk about the report when the evaluation is finished. Tanya and William will not use any illegal drugs and they will stay away from people who use drugs. Tanya and William will not use any drugs or allow others to use drugs in their home or [where] their children are present. Tanya and William will cooperate with the treatment program and they will stay in any programs until they are discharged. Tanya and William will provide a urine, breath, blood, saliva, or hair follicle sample for drug or alcohol test if they are asked to do so by their [social] worker. Tanya and William will understand that if they do not give a sample when asked to, their [social] worker and the Court will assume that they have used illegal drugs. The second category is "Counseling." The conditions of return in this category were as follows: Tanya B[.] and William L[.] will complete a Psychological and/or a Psychosocial Evaluation if recommended by the social worker. Tanya and William 4 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 will go to any treatment and/or counseling programs that may be recommended. Tanya B[.] and William L[.] will complete any programs recommended by their [social] worker. Tanya and William will attend individual or family counseling and they will stay in the program until they have completed the program. The third category is "Other." The conditions of return in this category were as follows: Tanya B[.] and William L[.] will stay in touch and cooperate with their [social] worker[,] . . . will meet with the [social] worker when asked, allow the [social] worker into the home, with or without notice, and inform the [social] worker of any address or telephone number changes[,] . . . will sign all necessary Releases of Information and cooperate with their [social] worker to arrange any treatment programs that are required[, and] will be available to their [social] worker to make any necessary appointments and they will give their worker copies of any papers, which will show that they have completed or participated in programs. Tanya B[.] and William L[.] will provide their children with a safe, suitable, and stable home. Tanya B[.] will resolve all criminal charges and cooperate with her probation or parole officer. Tanya B[.] and William L[.] will show that they can care for and control their children and that they understand their children's needs. Tanya and William will go to any parenting or nurturing program set up by the [social] worker and attend any community-based programs recommended by their [social] worker. Tanya and William will stay in any programs until they have completed them. Tanya and William will have appropriate child care for their children in their absence. Tanya and William will demonstrate the ability to use the skills in the programs that have been provided to them. ¶6 The dispositional orders were amended on November 29, 2004, to include two additional conditions of return as a result 5 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 of both parents being incarcerated. The new conditions were as follows: 1. William L[.] and Tanya B[.] shall independently establish and maintain an appropriate residence for themselves and their children upon release from prison and maintain that residence for a minimum of six months prior to the return of the children. 2. William L[.] and Tanya B[.] shall obtain and maintain full-time employment upon release from prison for a minimum of six months prior to the return of the children. ¶7 orders Item was family." six of labeled: the forms "Services used to be for the provided dispositional to child and Next to that statement, there was an empty box that a court could check to indicate a report was attached. The court did not check this box and there was no attached report listing the services to be provided to the children and family. ¶8 Item seven in the dispositional orders directed the Department to provide "supervision," "services" and "case management."5 ¶9 The children remained under the court's protection and the Department's supervision for the next three years. Then, on March 7, 2008, nearly four years after the court entered the original dispositional orders, the Department filed petitions to 5 The orders listed "DHSS" as the agency responsible for providing supervision, services and case management. This acronym refers to the Department of Health and Social Services, Division of Social Services. 6 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 terminate the parental rights of Tanya and William with respect to Elijah, Emily and Irie. ¶10 The court held a five-day jury trial in which all six termination Department petitions petitions presented for were tried lengthy termination, together. testimony At in demonstrating trial, support Tanya and the of its William's failure to comply with the court ordered conditions of return. Trial testimony services the children. included Department extensive provided to testimony on the William, Tanya many and the The relevant portions of such testimony are detailed in section II.C. infra. ¶11 At the conclusion of the evidentiary portion of the trial, the case was submitted to the jury in the form of a special verdict. only question asked: The special verdict posed four questions. relevant to this appeal is Question 2, The which Did the Department "make a reasonable effort to provide the services ordered by the court?" ¶12 During its deliberations, question to the court. "Ex: #3 p3." the jury submitted a At the top of the page, the jury wrote Trial Exhibit #3 was the dispositional order for one of the three children. Specifically, page three of the order was the page on which the detailed conditions of return were listed. notation. The The jury's question question asked: was "Are written the below explanation this of provisions listed as the services that were ordered by the court 7 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 in Question 2 of verdict?" On the record, the court discussed its proposed response to the jury's question. It stated: [Court]: The Court proposes to answer the jury's inquiry by stating, "The court-ordered services contained in the dispositional orders and revised dispositional orders were the conditions the parents were required to meet for return of the children." Any objection to that response? [Deputy District Attorney James Van Akkeren, cocounsel for the Department]: No, your Honor. . . . [Attorney Phillip S.L.]: No objection. Hoff, counsel for [Jay Zierhut, guardian ad litem, Elijah, Emily and Irie]: No objection. William counsel for [Attorney Marcus Falk, counsel for Tanya M.B.]: No objection. ¶13 The court submitted the proposed response to the jury. Approximately additional 30 minutes questions to later, the court. the jury The submitted questions and two the court's responses were as follows: [Jury]: by the court? What exactly were the services ordered [Court]: Answer: The obligation of the Dept. was to provide supervision of the case which implicitly included assisting the parents to meet the conditions of return of the children. [Jury]: Are the services ordered by the court contained in the conditions of return? [Court]: ¶14 Answer: No. Before the court answered the last two questions posed by the jury, Tanya moved to dismiss the petitions based on the 8 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 allegation that the dispositional orders did not set forth "specific services" as required by Wis. Stat. § 48.355(2)(b)1. The circuit court noted that it would take the motion under advisement and that the objection was preserved. ¶15 in the The jury answered the second special verdict question affirmative, finding that the Department made a reasonable effort to provide the services ordered by the court. The court granted judgment on the verdicts and, pursuant to Wis. Stat. § 48.424(4),6 found the parents to be unfit. Tanya renewed her earlier motion to dismiss the termination of parental rights petitions, which William joined. motion. The circuit court denied the The court then held a dispositional hearing wherein it concluded that it was in the best interests of the children to terminate the parental rights of Tanya and William. ¶16 On appeal, the court of appeals concluded that the circuit court erred in denying the parents' motion to dismiss the termination dispositional of orders parental rights underlying the petitions petitions because "failed the to set forth any court-ordered services as required by [Wis. Stat.] § 48.355(2)(b)1." Sheboygan County Dep't of Health & Human Servs. v. Tanya M.B., Nos. 2008AP3065, 2008AP3066, 2008AP3067, 2009AP136, 2009AP137 and 2009AP138, unpublished slip op., ¶1 (Wis. Ct. App. Apr. 29, 2009). ¶17 We granted review and now reverse. 6 Wisconsin Stat. § 48.424(4) states in relevant part: "If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit." 9 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 II. A. ¶18 Our DISCUSSION Standard of Review review draws into interpretation and application of question Wis. the Stat. (2003 04) and § 48.355(2)(b)1. (2007 08). potential § 48.355(2)(b)1. "The interpretation and application of a statute to an undisputed set of facts are questions of law that we review independently." Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶10, 318 Wis. 2d 553, 769 N.W.2d 481 (quoting McNeil v. Wis. 2d 358, 731 N.W.2d 273). Hansen, 2007 WI 56, ¶7, 300 We also review as a question of law whether the evidence presented to a jury is sufficient to sustain its verdict. Wis. 2d 43, 717 State v. Booker, 2006 WI 79, ¶12, 292 N.W.2d 676. However, we benefit discussion provided in previous court reviews. from the Spiegelberg v. State, 2006 WI 75, ¶8, 291 Wis. 2d 601, 717 N.W.2d 641. B. ¶19 Sufficiency of the Dispositional Orders The parties dispute whether the dispositional orders contained "specific services" as that term is used in Wis. Stat. § 48.355(2)(b)1. Accordingly, our inquiry is driven by our interpretation of § 48.355(2)(b)1. 1. ¶20 Parties' positions Because the parties offer competing interpretations of Wis. Stat. § 48.355(2)(b)1., it is instructive to examine each party's argument. 10 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 a. ¶21 After the Department's position parties submitted their briefs to this court, the Department filed a "Supplemental Authority Letter," which raised a new argument. Wis. Stat. § 48.355(2)(b)1. Wisconsin Act 20, § 1248. The Department pointed out that was amended in 2007 by 2007 Accordingly, § 48.355(2)(b)1. (2003 04),7 which was in existence at the time the dispositional orders were entered, version in and effect § 48.355(2)(b)1. at the time of (2007 08),8 trial, which contain was the different language. 7 Wisconsin added) stated: Stat. § 48.355(2)(b)1. (2003 04) (emphasis (b) The court order shall be in writing and shall contain: 1. The specific services or continuum of services to be provided to the child and family, to the child expectant mother and family or to the adult expectant mother, the identity of the agencies which are to be primarily responsible for the provision of the services ordered by the judge, the identity of the person or agency who will provide case management or coordination of services, if any, and, if custody of the child is to be transferred to effect the treatment plan, the identity of the legal custodian. 8 Wisconsin added) states: Stat. § 48.355(2)(b)1. (2007 08) (emphasis (b) The court order shall be in writing and shall contain: 1. The specific services to be provided to the child and family, to the child expectant mother and family, or to the adult expectant mother and, if custody of the child is to be transferred to effect the treatment plan, the identity of the legal custodian. 11 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶22 First, statute has a the less Department exacting contends standard that that the should 2003-04 apply here because the 2003 04 statute was in effect when the court entered the dispositional proceedings. orders The and for Department the argues majority that the of the CHIPS dispositional orders were sufficient under Wis. Stat. § 48.355(2)(b)1. (2003 04) because the term "if any" limited a judge's obligation to order services. ¶23 Second, the Department contends that even if the court interprets and applies Wis. Stat. § 48.355(2)(b)1. (2007 08), the dispositional orders were sufficient under that version of the statute. orders that It argues that the directive in the dispositional the Department provide supervision, services and case management coupled with the services implicitly needed to assist the parents in meeting the conditions for the return of their children enumerate the "specific services" to be provided to Tanya, William and their children.9 ¶24 forfeited Third, the their right Department to object 9 argues to the that the sufficiency parents of the This argument was best articulated by the Department at oral argument. However, at times, the Department's briefs suggested that it was conceding that the dispositional orders did not contain "specific services" as required by Wis. Stat. § 48.355(2)(b)1. For example, the Department's brief stated, "The dispositional order itself did not specifically list services that the Department was required to provide." We need not accept this concession of law. See State v. Lord, 2006 WI 122, ¶6, 297 Wis. 2d 592, 723 N.W.2d 425 ("This court, not the parties, decides questions of law."). 12 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 dispositional orders due to their failure to object in the nearly four years since the orders were entered. b. ¶25 the Parents' position The parents assert that the differing language between 2003 04 version and the 2007 08 § 48.355(2)(b)1. is inconsequential. because the court order "shall version of Wis. Stat. This is so, they assert, contain" "specific services" under both versions, a standard that the parents contend was not satisfied here. ¶26 The parents argue that the dispositional orders were insufficient under Wis. Stat. § 48.355(2)(b)1.10 because they did 10 In their briefs, Tanya and William argued that they are not challenging the sufficiency of the dispositional orders; instead, they submit that they are challenging only the Department's failure to meet its burden of proof at trial. They argued that the "absence of the mandatory written court-ordered specific services in the CHIPS dispositional orders precludes the petitioner from clearly and convincingly proving that it made a reasonable effort to comply with such orders." However, the parents fail to recognize that their burden of proof challenge necessarily encompasses a challenge to the sufficiency of the underlying dispositional orders. The parents' briefs demonstrate this point. Tanya's brief stated: "The CHIPS dispositional orders in these cases were negligently drafted . . . and the orders failed to list the services that [the Department] was to provide to the parents." It went on to state that the "orders failed to identify the specific services required to be provided to the children and the family by [the Department] under the provisions of sec. 48.355(2)(b)1." William's brief mounted similar arguments. 13 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 not separately list the "specific services" to be provided by the Department. The parents assert that in order to be sufficient, the box next to item six on the form used for the dispositional orders, indicating "[s]ervices to be provided to child and family," must have been checked and a separate report that listed the specific services to be provided must have been attached. This was not done here. On this basis, the parents argue that the petitions to terminate their parental rights must be dismissed. 2. ¶27 General principles Because "[w]e assume that the legislature's intent is expressed in the statutory language," statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, and therefore unambiguous, our inquiry goes no further and we apply the statute according to our ascertainment of its plain meaning. Id., ¶45. Additionally, such a suggestion is at odds with Tanya's original motion to dismiss, which William later joined. The initial motion was made off the record, which the court reiterated on the record as follows: "Mr. Falk, [counsel for Tanya,] has also requested to interpose a motion to dismiss based upon the fact that the dispositional order does not set forth the specific services as required under Section 48.355(2)[(b)1]." We conclude that the parents do challenge the sufficiency of the dispositional orders; therefore, we address those arguments. We also address the parents' argument regarding the Department's alleged failure to meet its burden of proof in section II.C. infra. 14 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶28 In ascertaining the plain meaning of a statute, we give the statutory language "its common, ordinary, and accepted meaning." Id. assist in us The scope, context and purpose of a statute a plain-meaning interpretation. Id., ¶48. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes . . . ." Id., ¶46. We interpret statutes to promote, rather than contravene, their stated purpose. See id., ¶49; McNeil, 300 Wis. 2d of 358, ¶16 ("[T]he interpretation of it."). statement[] of purpose a statute informs our A statute may "contain [an] explicit legislative purpose" or its "readily apparent from its plain language." purpose may be Kalal, 271 Wis. 2d 633, ¶49. 3. ¶29 Wisconsin Stat. § 48.355(2)(b)1. We assume without deciding that the parents did not forfeit their objection to the sufficiency of the dispositional orders. Therefore, we turn to the merits of the parties' arguments. ¶30 We first address the issue regarding which version of Wis. Stat. § 48.355(2)(b)1. controls in this case, either the 2003 04 version, which was in effect when the dispositional orders were entered, or the 2007 08 version, which was in effect at the time of trial. ¶31 the court Both versions of Wis. Stat. § 48.355(2)(b) state that order "shall contain" 15 followed by a list of 13 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 directives to the (2)(b)1., which circuit states court. that the Our order focus shall is on contain subd. "[t]he specific services" that are "to be provided to the child and family." § 48.355(2)(b)1. (2003 04); § 48.355(2)(b)1. (2007 08) (fully set out in footnotes 7 and 8, supra). 04 statute contained the additional However, the 2003 language that the order shall contain the specific services "or continuum of services" "if any," which terms are not present in the current statute. Compare § 48.355(2)(b)1. (2003 04) with § 48.355(2)(b)1. (2007 08). The Department argues that the "continuum of services" language in the 2003 04 statute is a less exacting standard than "specific services." It further argues that the "if any" language in the 2003 04 statute should be interpreted to mean that the order must list specific services only "if any" are so ordered. ¶32 The language 2007 08 that Therefore, any the order version of Department that is the statute posits sufficient is eliminates less under the exacting. the 2007 08 statute is necessarily sufficient under the 2003 04 statute as well. Because we conclude that the orders are sufficient under the 2007 08 statute, and therefore under the 2003 04 statute as well, it is not necessary for us to determine which version of the statute controls here. The dispositional orders are sufficient under either version. ¶33 contained As stated, we conclude that the dispositional orders "specific services," 16 as required by Wis. Stat. Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 § 48.355(2)(b)1.11 We so conclude because § 48.355(2)(b)1. does not require a CHIPS dispositional order to separately list each individual service that the Department is to provide so long as the Department is ordered to provide "supervision," "services" and "case management" and the order also provides detailed conditions that the parents must complete in compliance with the dispositional order. ¶34 parents' Department The detailed conduct is conditions establish to the provide, arrangements with others. directed specific either at changing services directly or that the the through For example, one condition states: "Tanya and William will go to any parenting or nurturing program set up by the [social] worker and attend any community-based programs recommended by their [social] worker." Implicit in 11 In its written decision and order denying the parents' motion to dismiss the termination of parental rights petitions, the circuit court concluded: "From the court's perspective the CHIPS order . . . failed to comport with the mandate of [Wis. Stat.] § 48.355(2)(b)1., . . . in that the order did not delineate specific services to be provided to the children and family by the Department . . . ." This conclusion conflicts with the circuit court's earlier response to the first jury question in which it informed the jury that "[t]he court-ordered services contained in the dispositional orders and revised dispositional orders were the conditions the parents were required to meet for return of the children." The court of appeals also concluded that "the dispositional orders fail to comply with the statutory mandate." Sheboygan County, No. 2008AP3065, unpublished slip op., ¶10. In any event, determining whether the dispositional orders contained "specific services" as required by Wis. Stat. § 48.355(2)(b)1. is a question of law that we review independently. See Estate of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶10, 318 Wis. 2d 553, 769 N.W.2d 481. 17 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 this condition is an order that the Department arrange for a parenting or nurturing program for the parents to attend, i.e., a specific service. The Department did arrange for a parenting program, but Tanya and William did not complete it. ¶35 The dispositional orders also directed the Department to assist the parents in completing certain programs, which the Department may recommend in order to enable them to be reunited with their children. programs," "an "Psychological and/or These [Alcohol and/or counseling a included or "alcohol Other Psychosocial programs" and or Drug] drug abuse assessment," Evaluation," "individual "treatment or family counseling." ¶36 The detailed conditions of return set out specific case management services the Department was to provide. The conditions required and Tanya and William to "stay in touch cooperate with their [social] worker," "meet with the [social] worker when asked," "allow the [social] worker into the home" and to "be available to necessary appointments." their [social] worker to make any Implicit in such conditions is the requirement that the Department provide services to the parents by providing a social worker who will be available to William and Tanya; who will set up appointments with them; and regularly "stay in touch." ¶37 The dispositional orders set out specific services that the Department was to provide to or arrange for the entire family, including the three children. 18 These services were to Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 assist William and Tanya in: "provid[ing] their children with a safe, suitable, and stable home"; control "understand[ing] their children"; learning to "care their for and children's needs"; and obtaining "appropriate child care for their children in their absence." ¶38 November The two conditions 2004 required the of return Department to that were assist added William in and Tanya, upon release from prison, in obtaining and maintaining an appropriate residence for themselves and their children and in obtaining and maintaining full-time employment. ¶39 Furthermore, the responses of counsel for Tanya, William and the Department to the circuit court's answer to the first jury question demonstrates that for almost four years all parties had been interpreting the dispositional orders as requiring the Department to arrange the services necessary to assist Tanya and William in meeting the court ordered conditions for the return of their children. This further supports our interpretation of Wis. Stat. § 48.355(2)(b)1. in light of the facts of this case. ¶40 Finally, § 48.355(2)(b)1. § 48.355(2)(b)1., our is interpretation consistent which is with "readily of Wis. the purpose apparent from its Stat. of plain language," coupled with the "explicit . . . legislative purpose" of the Children's Code. apparent purpose of Kalal, 271 Wis. 2d 633, ¶49. § 48.355(2)(b)1. is to assure that The the Department will arrange those services that are necessary to 19 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 assist the parents in meeting the court ordered conditions for the return of their children. However, how best to assist parents in meeting those conditions may change as the parents make progress behavior. or For encounter example, difficulty when Tanya in changing and their William were incarcerated, it would have made little sense for the circuit court to require the Department to visit in their homes on a weekly basis or to assist them in finding current employment. However, the Department could, and did, facilitate parenting classes and alcohol and drug treatment at the locations where Tanya and William were confined. In that way, the Department continued to provide services to the parents, as the court had ordered, albeit with the flexibility that Tanya and William's current circumstances required. ¶41 Our conclusion that the CHIPS dispositional orders are statutorily sufficient is consistent with legislative purpose of the Children's Code. the explicit Wisconsin Stat. § 48.01 states in relevant part: (1) . . . In construing this chapter, interests of the child or unborn child shall of paramount consideration. This chapter liberally construed to effectuate the express legislative purposes: the best always be shall be following (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. 20 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 . . . (gr) To allow for the termination of parental after rights at the earliest possible time rehabilitation and reunification efforts are discontinued . . . is in the best interest of the child. (Emphasis added.) ¶42 The Children's Code focuses on the best interests of the child. that the Wis. Stat. § 48.01(1). best interests of the The legislature has stated child are furthered permanent and stable home for the child. § 48.01(1)(a). and William could and establish a permanent stable by a Tanya home for their children only if they could change their conduct in ways that would permit them to meet the court ordered conditions for the return of the children. Affording the Department flexibility in the manner in which it provides services to the parents, permits changing needs. opportunity for the Department to accommodate the parents' This, in turn, affords the parents the best reunification of their family. Accordingly, both the apparent purpose underlying Wis. Stat. § 48.355(2)(b)1. and the explicit purpose conclusion that the of the CHIPS Children's dispositional Code support orders were our in compliance with § 48.355(2)(b)1. ¶43 Tanya and William also contend that F.T. v. State, 150 Wis. 2d 216, 441 N.W.2d 322 (Ct. App. 1989), requires dismissal of the petitions to terminate their parental rights. of appeals relied on F.T. in its decision. No. 2008AP3065, unpublished slip op., ¶9 & n.6. 21 The court Sheboygan County, Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶44 Tanya and Williams' reliance on F.T. is misplaced. In F.T., the court of appeals addressed whether the circuit court properly imposed sanctions for violation of the conditions of an order in a delinquency proceeding "where the order did not contain '[a] statement of the conditions with which the child [was] required to comply' . . . and where the court failed to 'explain[] the conditions to the child' at the dispositional hearing." F.T., 150 Wis. 2d at 218 § 48.355(2)(b)7. and (6)(a) (1987 88)). (quoting Wis. Stat. The sanctions that the circuit court had ordered were reversed by the court of appeals because the circuit court had not provided "a full explanation of what is necessary for compliance, and what conduct must be eschewed in order to avoid the sanctions which may be imposed for violation" when the legislature said the court "shall" so provide. ¶45 Id. at 227. F.T. involved § 48.355(2)(b)7. and statutes a served the (6)(a) very interpretation (1987 88). different Id. purpose of at in Wis. Stat. 218. regard Those to the interests of a juvenile in a delinquency proceeding, as compared with the purpose § 48.355(2)(b)1. serves in a CHIPS order. apparent purpose of § 48.355(2)(b)7. and (6)(a) is to The give notice to the juvenile of the conduct that the circuit court requires and the conduct the juvenile must avoid. ¶46 The reversal of the circuit court decision in F.T. came about because the lack of notice in the order contravened the purpose of Wis. Stat. § 48.355(2)(b)7. and (6)(a) (1987-88). 22 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 Stated otherwise, the decision in F.T. was driven by the failure of the circuit delinquency court to proceeding, give which notice failure to of a juvenile notice in affected a the juvenile's right to know of the conditions he must meet and the conduct he must eschew to avoid court sanctions. See id. at 227-28. ¶47 In contrast, the apparent purpose of Wis. Stat. § 48.355(2)(b)1. is to assure that the Department will provide those services necessary to assist parents in meeting the court ordered conditions for the return of their children. Tanya and William do not claim that the CHIPS dispositional orders were insufficient to cause the Department to provide the necessary services, nor is there any proof that the Department was not See section II.C. infra. diligent in doing so. F.T. does not support William and Tanya's Accordingly, claim that the argument and termination of their parental rights should be reversed. ¶48 Furthermore, to accept the parents' conclude that the dispositional orders are insufficient because the court failed to check a box on a form that the court used for the dispositional orders and to separately list how the Department was to provide each individual service necessary for the return of the children to the parents, would be to elevate form over substance. See State v. Saunders, 2002 WI 107, ¶41, 255 Wis. 2d 589, 649 N.W.2d 263 ("The process we require should not elevate form over substance."). This is so because William and Tanya do not contend that the Department failed to provide 23 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 them the services that were necessary for them to meet the detailed conditions for return of their children and because the conditions under which the Department attempted to assist William and Tanya changed over the four years of supervision. Accordingly, we will not elevate form over substance in our interpretation of Wis. Stat. § 48.355(2)(b)1., and we conclude that the CHIPS dispositional orders are sufficient to satisfy the statutory requirement. C. ¶49 Department's Burden of Proof A jury's verdict must be sustained if there is any credible evidence, when viewed in a light most favorable to the verdict, to support it. State v. DeLain, 2005 WI 52, ¶11, 280 Wis. 2d 51, 695 N.W.2d 484. Although we apply the standard set out in DeLain, we are mindful rights "are the among most that severe terminations forms of of parental state action," involving as they do "'the awesome authority of the State to destroy permanently relationship.'" all legal recognition of the parental Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996)). At stake for the parents is the permanent severance of "all rights, powers, privileges, immunities, duties and obligations existing between parent and child." Wis. Stat. § 48.40(2). ¶50 rights, "Due to the severe nature of terminations of parental termination safeguards against proceedings erroneous require decisions." 24 heightened Evelyn legal C.R., 246 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 Wis. 2d 1, ¶21. "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process12 requires that the State support . . . clear and convincing evidence." U.S. 745, 747 48 (1982); accord its allegations by Santosky v. Kramer, 455 Oneida County Dep't of Soc. Servs. v. Nicole W., 2007 WI 30, ¶10, 299 Wis. 2d 637, 728 N.W.2d 652 ("When a fundamental liberty interest is at issue, the due process clause of the Fourteenth Amendment requires that proof of parental unfitness be shown by clear and convincing evidence."). ¶51 reflects Wisconsin's this Children's constitutional Wis. 2d 637, ¶11. Code, concern. Wis. Stat. Oneida ch. 48, County, 299 When parents contest termination of their parental rights, the termination proceeding involves a two-step procedure a factual finding of grounds for termination and a legal conclusion that termination is in the best interests of the child. Id.; see also Wis. Stat. § 48.422; Evelyn C.R., 246 Wis. 2d 1, ¶¶22-23. ¶52 of Wisconsin Stat. § 48.415(2) sets out continuing need protection and services termination of parental rights. here. as grounds for an involuntary That is the grounds relied upon Pursuant to Wis. Stat. § 48.31(1), "[a]t the fact-finding hearing, the petitioner must prove the allegations supporting 12 The Due Process Clause in the Fourteenth Amendment of the United States Constitution states in relevant part: "nor shall any State deprive any person of life, liberty, or property, without due process of law." 25 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 grounds for termination by clear and convincing evidence." Oneida County, 299 Wis. 2d 637, ¶12 (internal quotations and brackets omitted). "While the legislative objective of the Children's Code is to promote the best interests of the child,13 the parent's grounds rights phase . . . are a court's ." Id. If central the focus during the meets this petitioner evidentiary burden, the court "shall find the parent unfit" and advance to the second step of the termination procedure. Wis. Stat. § 48.424(4). ¶53 During the second step of the termination procedure, the dispositional phase, "the court determines whether the best interests of the child are served by the termination of the Oneida County, 299 Wis. 2d 637, ¶13 (citing parent's rights." Evelyn C.R., 246 Wis. 2d 1, ¶23; Steven V. v. Kelley H., 2004 WI 47, ¶27, 271 Wis. 2d 1, 678 N.W.2d 856); Wis. Stat. § 48.426(2). If after evidence the dispositional warrants the phase termination the of court finds parental that rights, the "[t]he court may enter an order terminating the parental rights of one or both parents." ¶54 court In erred this Wis. Stat. § 48.427(3). case, during the the parents allege fact-finding phase jury's verdicts and finding the parents unfit. that in the circuit affirming the They assert this was error because the Department failed to meet its burden of demonstrating by clear and convincing 13 evidence that the Wisconsin Stat. § 48.01(1) states in relevant part: "In construing this chapter, the best interests of the child or unborn child shall always be of paramount consideration." 26 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 Department "ma[d]e a reasonable effort to provide the services ordered by the court" because there were no "services ordered by the court" in the dispositional orders. ¶55 We disagree. Wisconsin Stat. § 48.415(2) sets forth the requisite showing for a termination of parental rights on the grounds that a child is deemed in need of protection or services. special verdict questions presented to the jury The four track the requisite showing of § 48.415(2). ¶56 Wisconsin Stat. § 48.415(2)(a)2.b. requires a showing "[t]hat the agency responsible for the care of the child and the family . . . has services ordered Question 2 asked made by a the the reasonable court." jury whether effort Similarly, the to provide special Department the verdict "ma[d]e a reasonable effort to provide the services ordered by the court?" Pursuant to § 48.415(2)(a)2.a., the court further instructed the jury that: "[r]easonable effort" means an earnest and conscientious effort to take good faith steps to provide those services, taking into consideration the characteristics of the parent or child, the level of cooperation of the parent, and other relevant circumstances of the case. You may find the agency's effort was reasonable even though there were minor or insignificant deviations from the court's order. ¶57 The parents base their argument that the Department failed to meet its burden of proof solely on the assumption that 27 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 the dispositional However, in this orders failed decision, we to order previously services.14 any concluded that the dispositional orders did in fact contain court ordered services. See supra Part II.B. ¶58 We continue our discussion to demonstrate that the record is replete with credible evidence presented at trial that supports the jury's finding that the Department "ma[d]e a reasonable effort to provide the services ordered by the court." ¶59 alcohol The Department and other Department's Division was to provide parents drug assessment and of Outpatient Services alcohol and drug assessment for Tanya. directly the with treatment. performed an The an The Department did not administer William's assessment; instead, because 14 he The parents do not argue that the Department provided insufficient services to Tanya and William. Quite the opposite, the parents concede that the Department provided them with extensive services during the four years this action proceeded. The following exchange from oral argument illustrates this point. [Court]: Is there any insufficiency in terms of the evidence [or] the record that services were provided to the parents? [Counsel for Tanya]: No. I am not arguing that the parents did not receive significant services from the Human Services Department. I am not making that argument. [Court]: parents] receive? [Counsel]: Is there some particular service that [the should have received that they didn't No. 28 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 was incarcerated, the Department of Corrections performed William's assessment. ¶60 drug In February 2004, Ralph Radey, a certified alcohol and counselor employed Outpatient Services, prevention therapy. by agreed She that suited her to Department's provide attended dropped out of treatment. group the Division Tanya eight with sessions of relapse and then Mr. Radey then arranged a morning work schedule. Tanya sessions and again dropped out of treatment. attended two Mr. Radey sent Tanya numerous letters encouraging her to reinvolve herself in treatment. ¶61 alcohol Tanya never responded. As it did with Tanya, the Department offered William and drug treatment Outpatient Services. ¶62 enroll In in group. March services through its Division of William declined those services. 2006, relapse Tanya prevention contacted therapy Mr. and a Radey again to problem-solving Mr. Radey testified that Tanya attended three or four sessions and then dropped out of treatment. ¶63 The Department referred both William and Tanya to Alcoholics Anonymous and Narcotics Anonymous treatment groups, which they both sporadically attended. Tanya for outpatient treatment at The Department referred Libertas Aurora Sheboygan Memorial Medical Center. of Sheboygan and At both treatment centers, Tanya met with a counselor for her initial appointment and then failed to show up for appointments. 29 any subsequently scheduled Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶64 Both William and Tanya received extensive alcohol and drug treatment from the Department of Corrections while they incarcerated.15 were William and Tanya were generally uncooperative with regard to their alcohol and drug treatment. At trial, they both were of the opinion that treatment was a waste of time. William described one of his treatment programs as "a joke," and stated that treatment would not affect his "ultimate choice [of] whether or not [he] will use drugs." Mittlestaedt testified that "Tanya made it clear to me Ms. that treatment does nothing, she only goes because I make her go. She state[d] that . . . she is going to use if she wants to use." ¶65 The Department was ordered to provide Tanya with a psychosocial evaluation. The Department's Division of Outpatient Services completed the psychosocial evaluation16 and clinical summary. ¶66 individual The or Department family was ordered counseling to provide services. The the parents Department 15 At trial, William described 16 treatment programs in which he has participated. Most of the treatment programs were administered through the Department of Corrections in prison or as alternatives to revocation. 16 The evaluation assessed all the areas of Tanya's life and identified any other areas of difficulty not related to alcohol or drugs so that the Department could assist in providing treatment for those problems as well. The evaluation identifies such areas of difficulty by considering a person's childhood, legal history, familial history, education, work experience and using history. Tanya's assessment diagnosis indicated she had polysubstance dependency in remission. 30 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 arranged for Tanya and William to see a counselor for couples' counseling sessions. They attended counseling sessions for a couple of months and then stopped attending. did not complete Department William the performed and their a counseling complete children, Tanya and William program. family which Further, assessment consisted for of the Tanya, gathering information to determine treatment goals for the family. ¶67 The Department was ordered to assist the parents in learning to care for and control understanding their children's needs. their children and in In its attempt to do so, the Department referred Tanya and William to a parenting program offered by the Children's Service Society and instructed them on how to enroll. parenting program. Neither The Tanya nor William Department provided completed the Elijah with counseling services from a psychologist and psychiatrist for his behavioral issues. The Department encouraged Tanya to participate in Elijah's counseling sessions so she could better understand Elijah's needs. Tanya declined to participate. At countless meetings, Ms. Mittelstaedt discussed with William and Tanya how to better parent their children. ¶68 The Department was ordered to assist the parents in providing their children "a safe, suitable, and stable home." In this regard, the Department petitioned the court to change the children's placement to Connie's home when, due to William and Tanya's drug use and extended incarceration, it became clear that they could not provide a safe home for the children. 31 The Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 Department assisted Connie by providing parenting mentors that would come to her house during the week and help with the children; helping her enroll in a parenting class; and helping her obtain daycare and weekend respite care for the children. The Department also helped Connie obtain financial assistance while she cared for the children. Connie received a monthly subsidy from Kinship, a program administered by the Department, which is available for grandparents who have grandchildren placed with them. ¶69 several In attempts times placement. the to provide Department Elijah with formally a stable changed home, Elijah's On July 22, 2005, Elijah left Connie's home, and the Department placed him with his maternal aunt, Christie. The Department assisted Christie in obtaining low-income housing for her and Elijah and financial assistance. suffering from self-mutilation, the Because Christie was Department transferred Elijah to a temporary receiving home so the Department could assess where he should be placed next. Elijah returned to Connie's home. behavioral problems while at Then, on March 24, 2006, Elijah continued to exhibit Connie's; therefore, on December 14, 2007, the Department provided Elijah with foster care services. ¶70 The Department was ordered to assist the parents in establishing and maintaining an appropriate residence for their children. Several times Ms. Mittelstaedt offered to help Tanya move into the Bridgeway House, a shelter for homeless women and 32 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 their children, which assists mothers in getting back on their feet and in parenting their children. about the February Bridgeway 2006, House when Tanya and was Tanya was "very negative" refused to released move there. prison, from In the Department helped Tanya obtain affordable housing and helped her furnish her apartment with table and a couch. his own beds for the children, a kitchen The Department encouraged William to obtain apartment, but he maintained a transient lifestyle living temporarily with friends, Tanya and Connie. ¶71 The Department was ordered to assist the parents in obtaining appropriate child care in their absence. As stated, the Department petitioned to change the children's placement to Connie's home when William and Tanya were both incarcerated. ¶72 The Department was ordered to assist William and Tanya in obtaining and maintaining full-time employment for a minimum of six months. him obtain William refused the Department's offer to help employment from a full-time employment agency. William explained that he preferred the quick money he obtained through the agencies that provided temporary employment. William's temporary jobs never lasted more than four or five months. full-time Additionally, the Department encouraged Tanya to obtain employment, which she often did. However, her frequent incarceration, both of her subsequent pregnancies and drug use prevented her from maintaining full-time employment. ¶73 Finally, the Department was ordered to provide the parents a social worker who provided them with case management 33 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 services. The worker was ordered to keep in touch with the parents, be available to the parents and set up appointments to meet with the parents. Mittelstaedt as William Mittelstaedt scheduled The and Department Tanya's monthly home assigned social visits Martha worker. with Ms. William Tanya, which she increased to weekly visits in May 2007. and She also scheduled additional office visits and meetings upon their request. Over the course of the entire proceeding, Ms. Mittelstaedt scheduled more than 70 meetings with William and/or Tanya, including visits at the prison or jail. Ms. Mittelstaedt had approximately 85 phone conversations with the parents. In addition to her contact with William and Tanya, Ms. Mittelstaedt had more than 400 phone conversations and approximately meetings with other individuals involved in this case. meetings and conversations children were and various service with Connie, providers, These Christie, including 130 the counselors, teachers, relatives, probation and parole officers and doctors. ¶74 effort" A relevant to provide cooperation." consideration services is in determining the parents' Wis. Stat. § 48.415(2)(a)2.a. "reasonable "level of William and Tanya frequently rejected services offered by the Department and were especially uncooperative with respect to their drug and alcohol treatment. This is evidenced by the fact that William and Tanya used throughout drugs these proceedings. The specific examples of William and Tanya's drug use. 34 following are Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 ¶75 On July 19, 2004, William hit a park bench, driving while intoxicated. William was arrested for operating a vehicle while intoxicated. ¶76 On William, September 10, Elijah, overdose. The Emily police 2004, and Tanya Irie later overdosed were on heroin. present during her that William had discovered concealed in his pants the evidence of Tanya's drug use. and William narcotics. were both convicted of felony Tanya possession of Tanya was sentenced to 14 months in prison and 11 months of extended supervision. William, who was on probation for burglary, was sentenced to five years in prison. was released on parole on July 11, 2006. William In April 2006, before William was released, Tanya's probation was revoked after she tested positive for illegal drugs. Tanya remained in jail until August 16, transferred 2006, when she was to Taycheedah Correctional Institute for drug and alcohol treatment. ¶77 As a On March 27, 2006, Tanya tested positive for cocaine. result, April 7, 2006, Tanya and was arrested remained in by jail her until probation August agent 2006. on On April 23, 2007, William submitted someone else's urine to his social worker for a drug test. William fled, and a warrant was issued for his arrest. ¶78 she On May 10, 2007, Tanya again overdosed on heroin while was with William and her five-month-old son, Shannon.17 Tanya was placed in jail on a probation hold after this incident 17 Tanya's son, Shannon, is not a party to this proceeding, and William is not Shannon's father. 35 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 and remained there until May 23, 2007. William was also arrested on an outstanding arrest warrant. ¶79 On August 25, 2007, William was intoxicated and got into a fight with Tanya's then boyfriend. William was convicted of disorderly conduct and was sentenced to six months in jail. As an alternative to revocation, he spent three months in an alcohol and drug halfway house in Waukesha, Wisconsin. ¶80 Tanya's social worker testified that she "disappeared" from the beginning of November 2007 to December 19, 2007, when she was arrested and jailed on a probation hold. At the time of trial, Tanya was still incarcerated. ¶81 "other Determining reasonable effort also takes into account relevant § 48.415(2)(a)2.a. circumstances of the case." Wis. Stat. One such relevant circumstance was William and Tanya's unavailability due to frequent incarceration. Ms. Mittelstaedt confirmed that the Department considered this in stating Tanya] that were services "services were incarcerated because of and their contingent if they upon if weren't incarceration." [William and available for The foregoing incidents of William and Tanya's drug abuse also demonstrate how frequently they were incarcerated. ¶82 Based upon the foregoing, we conclude that there is sufficient credible evidence to support the jury's verdict that the Department proved by clear and convincing evidence that it "ma[d]e a reasonable effort to provide the services ordered by the court." 36 Nos. 2008AP3065 2008AP3067 & 2009AP136 2009AP138 III. ¶83 08 CONCLUSION We decline to decide whether the 2003 04 or the 2007 version of Wis. Stat. § 48.355(2)(b)1. governs this case because we conclude that under either version of the statute the dispositional orders are sufficient. found in the orders' direction to The specific services are the Department to provide supervision, services and case management to the children and family coupled with the orders' detailed conditions that Tanya and William must meet for the children's return to them. detailed conditions implicitly required the Those Department to provide services necessary to assist the parents in meeting the court ordered conditions for the return of their children. further conclude convincing that evidence the that it Department "ma[d]e proved a by reasonable clear We and effort to appeals is provide the services ordered by the court." By the Court. The decision reversed. 37 of the court of Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶84 SHIRLEY S. ABRAHAMSON, C.J. affirm the orders of the circuit (concurring). court denying I would the parents' motions to dismiss the termination of parental rights petitions. ¶85 I do not join opinion, the the majority § 48.355(2)(b), which majority opinion opinion sets forth because, rewrites mandatory in Wis. my Stat. requirements for dispositional orders.1 ¶86 I begin by stating the procedural posture of the case. ¶87 The reversed parents because specifically, in contend the that dispositional accordance with the jury orders Wis. Stat. verdict failed must to be state § 48.355(2)(b)1., the services the Department would provide them. The parents argue that the Department did not meet its statutory burden at trial of parents proving failed children's to return. by clear meet The the and convincing court-ordered parents explain evidence that the conditions for the that the Department 1 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. As the majority explains, the language of the 2003-04 statute is less exacting, and therefore "it is not necessary for us to determine which version of the statute controls here." Majority op., ¶32. 1 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa cannot meet this burden when the circuit court did not order the Department to provide specific services to the parents.2 ¶88 The majority opinion is defective in the following respects: ¶89 First, the majority opinion unnecessarily broad strokes, and mistaken ones at that. writes in The majority risks consequences some apparent, some no doubt unforeseen for all future termination of parental rights cases. ¶90 This case should be decided, in accordance with sound appellate practice, on the narrowest grounds.3 In doing so, I conclude, as did the circuit court, that the parents forfeited their objection to the circuit court's deficient March 30, 2004, dispositional orders. In contrast, the majority opinion chooses to "assume without deciding" that the parents did not forfeit their objection to the sufficiency of the dispositional order. Majority op., ¶29. The majority inexplicably bypasses this opportunity for judicial restraint. 2 Wisconsin Stat. § 48.415(2) allows for termination of parental rights if grounds are proved, that is, if it can be proven, among other factors, "that the agency responsible for the care of the child and family . . . has made a reasonable effort to provide the services ordered by the court." See also Wis. Stat. § 48.345 (requires the court, in dispositions of a child adjudged in need of protection or services, to order an agency to provide specified services). The parents are not asserting that the Department failed to provide them services. Rather, their complaint is only that the dispositional order did not state the specific services to be provided as required by the statute. 3 State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997). 2 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶91 the Second, in interpreting Wis. Stat. § 48.355(2)(b)1., majority fails to heed the plain words of the statute. Instead, the majority opinion rewrites the statute in violation of the doctrine of separation of powers. ¶92 Third, in rewriting Wis. Stat. § 48.355(2)(b)1. to render the dispositional order in the present case compliant with the statute, the problems in the future. severe form safeguards.4 of state majority may present constitutional Termination of parental rights is a action and requires heightened legal The majority lessens the legislatively prescribed protections afforded the parents.5 ¶93 Fourth, the court imposes unfunded mandates on county departments of health and human services. I ¶94 This case should be decided against the parents on the ground of forfeiture. Forfeiture is the failure to make the 4 Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶20-21, 246 Wis. 2d 1, 629 N.W.2d 768. See also Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.") 5 The majority's recognition that "termination proceedings require heightened legal safeguards" makes particularly inexplicable its choice to lower the procedural requirements under § 48.355(2)(b)1. and thus the state's obligations in making a detailed and specific showing of the necessity of terminating parental rights. Majority op., ¶50. 3 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa timely assertion of right.6 a A primary purpose of the forfeiture rule is to require the parties to give notice of the issue to the circuit court opportunity to address it.7 eleventh-hour surprises.8 and allow the circuit court an The forfeiture rule guards against Here the parents and the Department worked under the terms of the dispositional orders for over four years, without any parental objection to the contents of the orders. ¶95 case The termination proceedings at issue in the instant were circuit 2004. not court initiated entered the Majority op., ¶9. until nearly four dispositional years orders on after the March 30, For four years, the parents knew the content of the dispositional orders and worked under them. Yet, as the majority explains, at no point in that time did the parents challenge the sufficiency of the dispositional order. Majority op., ¶39. Absent such a challenge, the court was not given the opportunity to repair the dispositional orders. ¶96 Nor did the parents dispositional order at trial. raise the sufficiency of the Indeed, the issue was not raised until the last day of the five-day proceeding, and then only by the jury, not the parents. 6 State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). 7 Ndina, 315 Wis. 2d 653, ¶30. 8 Ndina, 315 Wis. 2d 653, ¶30. 4 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶97 answer In accordance with the following the question: law, Did the the jury was asked Department to "make a reasonable effort to provide the services ordered by the court?" During "Are deliberations, [sic] the the jury explanation of submitted the a question provisions asking: listed as the services that were ordered by the court in [this question] of Majority op., ¶11-12.9 verdict?" to register any complaint. Even then, the parents failed Rather, they court's proposed response without objection. ¶98 consented to the Majority op., ¶12. An additional 30 minutes passed and the jury persisted by asking two additional clarifying questions relating to the services to be provided: "What exactly were the services ordered by the court? Are the services ordered by the court contained in the conditions of return?" question, the circuit court In response to the jury's second responded, "No." Majority op., ¶¶12-15.10 ¶99 jury, Before the circuit court sent its responses to the the mother moved to dismiss the petitions on the insufficiency of the dispositional orders. The circuit court took the the motion under advisement. After circuit court 9 The circuit court answered as follows: "The court-ordered services contained in the dispositional orders and revised dispositional orders were the conditions the parents were required to meet for return of the children." No one objected to this response. 10 In contrast, the majority concludes that the services ordered by the court were contained in the conditions of return. 5 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa granted judgment against the parents, the mother renewed her motion, which was denied. ¶100 I conclude on the basis of the facts of the present case that the parents sufficiency of affirm orders the the forfeited dispositional of the their objection orders. circuit court I would terminating to the therefore parental rights on the ground of forfeiture. II ¶101 The parents argue that the dispositional orders did not meet the statutory standard set forth in Wis. Stat. § 48.355(2)(b)1., which provides that the circuit court shall issue a written order that shall contain the specific services to be provided to the child and family. Wisconsin Stat. § 48.355(2)(b) provides in relevant part as follows: 48.355(2)(b) The court order shall be in writing and shall contain: 1. The specific services to be provided to the child and family, to the child expectant mother and family, or to the adult expectant mother and, if custody of the child is to be transferred to effect the treatment plan, the identity of the legal custodian (emphasis added). ¶102 The general rule is that the word "shall" in a statute is presumed mandatory unless a different interpretation needed to carry out the clear intent of the legislature.11 majority does not dispute Stat. § 48.355(2)(b)1. 11 In Matter N.W.2d 584 (1983). of that "shall" is mandatory in is The Wis. The court of appeals, in In the Interest E.B., 111 6 Wis. 2d 175, 185-86, 330 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa of F.T., 150 Wis. 2d 216, 225, 441 N.W.2d 322 (1989), carefully analyzed the use of the words "shall" and "may" in various provisions in Wis. Stat. § 48.355(2)(b) and interpreted the word "shall" to be mandatory. The court of appeals' decision reflects established Wisconsin law, is persuasive, and should not be discarded.12 ¶103 Interpreting the word "shall" as mandatory, I conclude that the dispositional orders did not meet requirements under Wis. Stat. § 48.355(2)(b)2. the statutory I attach a copy of the dispositional order for the reader's ease of following my reasoning and that of the majority. The order is a form prescribed by the Judicial Conference and its use is mandated; the form may be supplemented. See Wis. Stat. §§ 758.18, 971.025; SCR 70.153. ¶104 Item 4 of the form circuit court order is entitled "Conditions of supervision and/or return." The circuit court inserted various acts the parents must perform.13 12 In the Interest of F.T., 150 Wis. 2d 216, 225, 441 The N.W.2d 322 (1989). F.T. related to juvenile proceedings. statute at issue in F.T. is substantially similar to the present Wis. Stat. § 48.355. At the time of F.T., the statute covered both CHIPS and juvenile proceedings. The reasoning of F.T. regarding the mandatory nature of the word "shall" in the statute is still applicable to the present statute covering CHIPS cases. 13 These conditions are based on the recommendations set forth in a Memo dated March 23, 2004, that the Sheboygan Department of Health and Human Services provided to the circuit court. 7 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶105 Item 6 of the form circuit court order is entitled "Services to be provided to child and family." listed by the circuit court. No services are Furthermore, the box on the form circuit court order entitled "see court report" is not checked.14 ¶106 Item 7 of the form circuit court order is entitled "Agency/person management." court. responsible for supervision/services/case The letters "DHSS" were inserted by the circuit With item 6 left blank, item 7 does not make clear, much less specific, what services the DHSS is to provide. ¶107 The plain text of the statute mandates that the written court order shall contain the specific services to be provided. The majority explicitly acknowledges the obvious, stating, ". . . there was no attached court report listing the services to be provided to the children and family." op., ¶7 (emphasis added). Majority Thus the majority concedes that the statutory standard was not met in the present case. ¶108 Nevertheless, the majority soldiers on to somehow conclude that the dispositional orders in the present case did contain "specific services" as required by the statute. majority reasons as follows: order to "separately list The the statute does not require the each individual service that the Department is to provide so long as the Department is ordered to provide 'supervision,' 'services' and 'case management' and the 14 A court report prepared by the Department in connection with the CHIPS proceedings stated that "[t]he family will receive services through Sheboygan County Department of Human Services Child Protection Ongoing Unit." 8 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa order also provides detailed conditions that the parents must complete in compliance with the dispositional order." Majority op., ¶33. ¶109 The majority reaches the absurd and inherently contradictory conclusion that the "specific services" standard identifying the state's obligations for assistance was met by the "implicitly" required services as elucidated in the parent's obligations ¶¶34-38. under The conditions majority thus of return.15 rules that See orders majority that op., contain "implicitly stated services" satisfy the statutory requirement that orders "contain the specific services to be provided." ¶110 The majority's very own reasoning demonstrates that the circuit court's dispositional order does not contain the specific services to be provided to the child and family as required by Wis. Stat. § 48.355(2)(b)1.16 ¶111 In contrast to the majority opinion, and certainly more candidly, the same circuit court judge who prepared the dispositional orders in March 2004 concluded at the termination 15 If the conditions of return are the same as the specific services to be provided, as the majority asserts, it is superfluous for the form dispositional order to separate services and conditions. The form, as well as the statute, undercuts the majority's reasoning. 16 The majority's fallacious interpretation is demonstrated by examining Wis. Stat. § 48.355(2)(b)7., which provides that the written court order shall contain "a statement of the conditions with which the child or expectant mother is required to comply." By construing the conditions mandated by Wis. Stat. § 48.355(2)(b)7. as the specific services required by Wis. Stat. § 48.355(2)(b)1., the majority merges two subsections and treats them as synonymous. 9 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa of parental rights trial that his own orders "did not direct the provision of any services." I agree with the circuit court. ¶112 By deciding that the conditions for return satisfy the "specific services" requirement under Wis. Stat. § 48.355(2)(b)1., the majority has created a different statutory provision than the legislature adopted. The majority opinion violates "the principle that it is the legislature that chooses the words of a statute."17 The majority thus usurps a power not vested in this court and offends the fundamental doctrine of separation of powers embodied in the Wisconsin Constitution.18 ¶113 The dispositional orders in the present case do not comply with the plain meaning of Wis. Stat. § 48.355(2)(b)1., but the parents have forfeited their challenge to the dispositional orders. III ¶114 As the majority recognizes, terminations of parental rights involve "'the awesome authority of the State to destroy permanently all relationship.'"19 legal The recognition legislature thus of the carefully parental mandated a procedure for termination of parental rights, including numerous matters to be included in a circuit court dispositional order. 17 Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶25, 294 Wis. 2d 274, 717 N.W.2d 781. 18 "The separation of powers doctrine is violated when one branch interferes with the constitutionally guaranteed exclusive zone of authority vested in another branch." Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992). 19 Majority op., ¶49 (quoting Evelyn C.R., 246 Wis. 2d 1, ¶20) (internal citations and quotations omitted). 10 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶115 The legislature further mandates in Wis. Stat. § 48.355(2)(d) that the circuit court shall "provide a copy of a dispositional order relating to a child in need of protection or services to the child's parent . . . ." ¶116 The purpose of detailing the matters to be included in the order and requiring a copy of the written order to be given to the parents is to advise the parents (and others) fully about the conditions they must meet and the assistance they can expect from the Department. services they are If, however, parents must extrapolate the to be provided from order, the notice is ineffectual. various parts of the Yet notice is an essential aspect of procedural due process. ¶117 Still, the majority ignores the statutes requiring the circuit court to give the parents explicit, clear information. Instead the majority frustrates the statutory directives and the legislature's constitutionally protective intent by allowing implicit requirements to run rampant in its analysis. ¶118 Considerations of clarity and adherence to basic principles of due process of law lead me to conclude that the majority's interpretation inconsistent with the of the purpose statute of and the the order statutory is notice requirement and may present constitutional due process issues in the future. IV ¶119 In its result-oriented effort to save the dispositional orders here, the majority seemingly allows future dispositional orders to be interpreted 11 to impose unfunded Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa mandates on the county. Thus the Department has won the present "battle" but may have lost the greater "war," that is, it may have lost its argument that the dispositional order should not be read to mandate that county health and human services departments "underwrite, structure, staff and provide the entire panoply of 'services' contemplated in these CHIPS cases." The Department's brief explains: In the current state of national and regional economic recession and resulting draconian cuts in budgets for social services, it is highly unrealistic to presume that county Health & Human Services departments throughout the state, particularly those in smaller counties with smaller budgets, would have the resources to unilaterally underwrite, structure, staff and provide the entire panoply of 'services' contemplated in these CHIPS cases which range from simple parenting classes to psychosocial evaluations and ongoing drug and alcohol counseling.20 20 Petitioner-Respondent-Petitioner's Brief at 11. In its reply brief position as follows: the Department further explains [T]here is not a statutory duty for the Department to formally provide services which are often in fact provided by other agencies . . . . Common sense recognizes that it [is] a rare social services department which has the resources to provide the complex multitude of classes, counseling resources, and, at times, inpatient treatment which parents in a CHIPS action may require to bring their parenting conduct to an acceptable level. That has certainly not been the case here, where a vast majority of the services given to the parents were supplied by agencies some governmental, some non-profit, some funded partly by county funds other than the Department. Petitioner-Respondent-Petitioner's Reply Brief at 6-7. 12 its Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶120 Troublingly, the majority opinion appears to do just what the Department has feared. the form dispositional responsible for For example, item Number 7 of order is entitled supervision/services/case "Agency/person management." The majority opinion reads these words in the form as directing the Department to management." provide "supervision," "services," and "case The majority then turns to item 4 in the form dispositional order, which states "the conditions of supervision and/or return." The conditions the circuit court imposed address only the parents' obligations to meet conditions to have the child returned. From item numbers 7 and 4, the majority extrapolates that the circuit court ordered specific services be provided or "arranged" by the Department. ¶121 Thus, one condition for return in the circuit court order dispositional order states that "Tanya and William will go to any parenting or nurturing program set up by the worker and attend any worker." community-based programs recommended by their The condition for return imposes only an obligation on the parents to attend a program in the event that one is set up or recommended dispositional Department by orders about a their social explicitly program. worker. impose Yet the an Nowhere obligation majority do the on the asserts that "[i]mplicit in this condition is an order that the Department arrange for a parenting or nurturing program for the parents to attend, i.e., a specific service." added). Majority op., ¶34 (emphasis Other conditions imposed on the parent are similarly 13 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa transformed by the majority into an order that the Department provide or "arrange for" various services. ¶122 There is no limit to the potential extrapolation of the Department's Unless services the to obligations court be order provided from the explicitly to the conditions enumerates child and of the return. "specific family," one can extrapolate from the conditions placed upon the parents many services that the Department becomes obligated to provide either directly or through arrangements with others. ¶123 Thus responsibilities the on majority the appears Department, to impose emanating conditions for return imposed on the parents. unfunded from the I do not think that the circuit court or the legislature intended this result. ¶124 Further, while the Department is obligated to provide various services, see majority op., ¶34, the majority offers only hazy guidelines as to what the obligations are, how they may be adequately satisfied, and who pays for the services. The majority fails to offer useful guidance to the circuit courts or departments about how they must now proceed. ¶125 In sum, I conclude that Wis. Stat. § 48.355(2)(b)1. mandates that a circuit court dispositional order must either contain the specific services the court orders or explicitly state that no services are ordered. the specific Department services discretion in A circuit court can order statutorily how to required, provide giving services opportunity to change services as circumstances require. 14 and the the Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa ¶126 In the instant case, although the dispositional order did not meet the statutory requirement, the parents forfeited any challenge to the dispositional order on the ground that the dispositional order did not contain the specific services to be provided. ¶127 For the reasons set forth above, I concur. ¶128 I am authorized to state BRADLEY joins this opinion. 15 that Justice ANN WALSH Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa 1 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa 2 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa 3 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa 4 Nos. 2008AP3065-2008AP3067 & 2009AP136-2009AP138.ssa 1

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