Fond du Lac County Dept. of Social Services v. T.P.W., Jr., 2024AP553, 10/9/24, District II (one-judge decision; ineligible for publication); case activity
COA affirms circuit court’s decision refusing to instruct jury regarding “impossibility” at T.P.W.’s trial to terminate his parental rights because he was incarcerated two months after conditions for return were ordered and his incarceration was not sole basis he failed to meet conditions.
The Fond du Lac County Department of Social Services commenced a child in need of protective services (CHIPS) proceeding and, at a dispositional hearing in August 2018, the circuit court determined “Sam” (a pseudonym) was in need of protection or services and placed in foster care. The dispositional order identified the following conditions that T.P.W. (referred to as “Fred”) needed to meet in order to have Sam returned to his custody: 1) maintain safe, suitable and stable housing; 2) participate in a parenting assessment and parenting classes; 3) participate in an AODA assessment; 4) meet Sam’s medical, dental, mental health, and educational needs; 5) make reasonable efforts to maintain employment; 6) cooperate with the county department of social services; 7) not commit any new criminal law violations; and 8) if incarcerated, cooperate with the department of social services and any facility in which he is incarcerated. (¶ 3).
In October 2018, Sam incurred new criminal charges and was incarcerated. In April 2021, while Sam remained incarcerated, the county filed a petition to terminate his parental rights because Fred had not met seven of the eight conditions. (¶ 5).
The trial commenced in October 2023. The County’s witnesses testified that Fred did not meet most of the conditions because he was incarcerated. However, witnesses testified that Fred refused AODA counseling and did not maintain contact with Same while he was incarcerated. (¶¶ 9, 23). Fred asked the circuit court to give the jury an “impossibility” instruction based on Jodie W., where SCOW held that a parent’s failure to fulfill a condition of return due to his or her incarceration, standing alone, is not a constitutional ground to terminate parental rights. (¶ 13). The circuit court declined to give the instruction because Fred’s incarceration did not begin until two months after the conditions for return were imposed and because the County presented evidence that Fred failed to meet multiple conditions of return, while only a single condition was at issue in Jodie W. (¶ 13). The jury found that Fred did not meet the conditions for return and the circuit court terminated his parental rights. (¶ 14).
The COA affirmed. First, the Court found that “a condition of return is ‘impossible’ to meet under Jodie W. if the parent cannot possibly fulfill it at the time it is imposed.” (¶ 21). Because Fred was not incarcerated when the conditions were imposed, he did not show the conditions were impossible to meet at that time. (¶ 22).
Second, the Court distinguished Jodie W. because SCOW “was concerned not only by the fact that the mother could not possibly have satisfied the stable housing condition due to her incarceration but also with the fact that her failure to meet that condition was the sole predicate for the circuit court’s finding of unfitness.” (¶ 23). Fred, on the other hand, could have made efforts to meet some of the conditions while he was incarcerated but failed to do so: “Even if Fred could convince this court that one or more of his conditions were impossible for him to meet, he points to nothing in the record to suggest that the jury’s finding that he had failed to meet his conditions of return was based solely on its conclusion that he had not met the impossible conditions.” (¶ 24).
