Rock County Department of Social Services v. K.K.

SUNDBY, J.

(dissenting). I disagree with the majority's attempt to distinguish In re D.F., 147 Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988). The trial court's duty under sec. 48.365, Stats., to inform the parent is not affected by the grounds for termination of parental rights. In In re D.F., we said:

We conclude that the trial court's duty to warn and inform a parent under sec. 48.356(2), Stats., is included in that "panoply of substantive rights and procedures to assure that. . . parental rights will not be terminated precipitously [or] arbitrarily . . .." M.A.M., 116 Wis. 2d at 437, 342 N.W.2d at 412. The statute is mandatory, unequivocal and imperative.

Id. at 495, 433 N.W.2d at 612.

Section 48.356, Stats., provides:

(1) Whenever the judge orders a child to be placed outside his or her home because the child has been adjudged to be in need of protection or services under s. 48.345, 48.357, 48.363 or 48.365, the judge shall orally inform the parent or parents who appear in court of any grounds for termination of parental rights under s. 48.415 which may be applicable and of the conditions necessary for the child to be returned to the home . . ..
(2) In addition to the notice required under sub. (1), any written order which places a child outside the home under sub. (1) shall notify the parent or parents of the information specified under sub. (1).

In In re D.F., we held that sec. 48.356, Stats., required that the trial court give the required notice of possible termination of parental rights whenever it made a CHIPS order placing or continuing a child in a place*446ment outside the child's home. See In re D.F., 147 Wis. 2d at 496-97, 433 N.W.2d at 612-13.

The majority concludes that if the parent is notified when the child is first removed from the home that abandonment is a ground for termination, sec. 48.365, Stats., does not require further notice when an extension order is entered. The majority relies on sec. 48.415, Stats., which provides in part:

Grounds for termination of parental rights shall be one of the following:
(1) Abandonment, (a) Abandonment may be established by a showing that:
2. The child has been placed, or continued in a placement, outside the parent's home by a court order containing the notice required by s. 48.356(2) and the parent has failed to visit or communicate with the child for a period of 6 months or longer . . .. [Emphasis added.]

I have added the emphasis to call attention to that part of the statute which the majority writes out. Plainly, "a court order containing the notice required by s. 48.356(2)" modifies both "has been placed," and "continued in a placement," outside the parent's home.

The majority's error stems from its misunderstanding of the CHIPS procedure. The majority apparently concludes that all extensions of dispositional orders are part of the original disposition and are not separate proceedings. This is not the case. A new dispositional order issued under sec. 48.355, Stats., is required whenever the child's disposition is extended. Section 48.365(2m)(a), Stats. Section 48.356(1), Stats., makes clear that the trial court's duty to inform the parent applies not only to the original dispositional order but to each extension. The statute applies to orders under sec. 48.345, Stats., or *44748.365. Section 48.345 authorizes the initial order while sec. 48.365 authorizes an extension.

The majority's construction of sec. 48.356, Stats., leads to an unreasonable result. Whenever the trial court enters an extension order under sec. 48.365, the judge will be required to inform the parent or parents of the CHIPS grounds for termination of the parent's parental rights but not the abandonment grounds. This odd result cannot have been intended or anticipated by the legislature when it enacted sec. 48.356. I dissent.