State v. P.G.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 2, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2021AP1231 Cir. Ct. Nos. 2020TP44
2020TP45
2021AP1232 2020TP46
2021AP1233
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS TO P.G., A PERSON UNDER THE
AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

P.G.,

RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.G., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

P.G.,
Nos. 2021AP1231
2021AP1232
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RESPONDENT-APPELLANT.

IN RE THE TERMINATION OF PARENTAL RIGHTS TO J.G., A PERSON UNDER
THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

P.G.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Affirmed.

¶1 BRASH, C.J.1 P.G. appeals the orders of the trial court terminating
his parental rights to P.G., Jr., and twins J.G. and J.G. He argues that the petitions
filed by the State seeking to terminate his parental rights to the children were
insufficiently specific to meet the requirements of WIS. STAT. § 48.42(1)(c)2. He
also argues that the COVID-19 pandemic interfered with his ability to complete
the conditions required for reunification with the children, and therefore his right
to due process was violated. Upon review, we affirm.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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BACKGROUND

¶2 P.G. is the adjudicated father of P.G., Jr., born in May 2017, and the
biological father of twins J.G. and J.G., who were born in April 2018. P.G. and
the children’s mother, S.T., have lived together since 2017. S.T.’s parental rights
were also terminated under the orders that underlie this appeal.2

¶3 The children were detained by the Division of Milwaukee Child
Protective Services (DMCPS) in September 2018 after S.T. brought one of the
twins to the emergency room at Children’s Hospital with severe burns over “a
significant portion” of his body. S.T. explained to hospital staff that she was
giving the twin a bath and did not realize the water was too hot. She did not
immediately take the twin to the hospital because she did not think that the burn
was significant; however, the skin that was burned was described as “blackened,
blistered, and peeling,” and required surgery.

¶4 S.T. is “cognitively delayed.” She was charged with felony child
neglect causing great bodily harm after the incident with the burn but was found
not guilty of that crime due to mental disease or defect and placed in community
supervision for five years. Furthermore, S.T. has an extensive history with
DMCPS. About ten years prior to this case, S.T. had another child who was
removed from her custody after suffering first and second-degree burns for which
S.T. did not seek medical care; as a result, S.T.’s parental rights to that child and
another child were terminated in 2008. S.T. also had two children die of

2
S.T. also appealed the orders terminating her parental rights in a separate case.

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suffocation from co-sleeping, at different times, with one of those deaths
considered “suspicious[].”

¶5 There were also current contacts with the family by DMCPS prior to
the twin being burned. Because the twins were born prematurely, they have
medical conditions, including gastrointestinal issues, which were being monitored
by DMCPS, and all three children have chromosomal abnormalities that could
result in problems with their vision, which also require regular clinical
appointments. DMCPS was contacted in June 2018 after the twins missed two
medical appointments and healthcare providers were not able to get in contact with
the parents. Then in July 2018 it was reported that the twins were not being fed
properly and they were “failing to thrive” as they have problems swallowing.

¶6 After the burn incident, the three children involved in this matter
were removed from their parents’ custody based on the potential for further
“dangerous incidents” that could cause them harm, and petitions for protection or
services (CHIPS) were filed.3 The children were placed in foster care as opposed
to remaining with P.G., because it was suspected that P.G. also has cognitive
delays, and because at the time, P.G. had an open case in Milwaukee County for
disorderly conduct related to a domestic abuse incident occurring in August 2018.4

3
Another child of P.G. and S.T.—S., who was born in 2010—was also removed from
the home at that time. S. was not included in the orders for the termination of parental rights
which underlie this appeal; rather, a transfer of guardianship of S. was pending at the time of
these proceedings.
4
P.G. was charged with disorderly conduct after it was reported that he became
“aggressive” with S.T. while he was intoxicated. The case was eventually dismissed.

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¶7 Dispositional orders relating to the CHIPS petitions were entered in
June 2019, and listed a number of requirements that had to be met by S.T. and
P.G. before the children could be returned to their care. Those requirements for
P.G. included completing a psychological evaluation, as well as taking parenting
classes to assist him in being able to meet the requirements of demonstrating that
he and S.T. could provide a safe home for the children and properly care for them.
Additionally, there was a requirement for regular visitation with the children.

¶8 P.G. failed to meet those conditions, and petitions for the
Termination of Parental Rights (TPR) of S.T. and P.G. with regard to P.G., Jr.,
J.G., and J.G. were filed in February 2020. In the TPR petitions, the State’s
alleged grounds for termination included the continuing need of protection or
services for the children, pursuant to WIS. STAT. § 48.415(2), and the failure of
S.T. and P.G. to assume parental responsibility, pursuant to § 48.415(6).

¶9 Specifically, the petitions alleged that P.G. and S.T. had never been
able to progress beyond fully supervised visits with the children. Furthermore,
neither parent regularly attended the children’s medical appointments that are
necessary to monitor their health issues.

¶10 Additionally, the State noted that P.G. “continues to have a
relationship and live with” S.T., whose “significant cognitive delays” prevent her
from being “trusted to provide safe care for the children if left alone for any period
of time.” It alleged that P.G. “does not seem to understand that [S.T.]’s deficits
and history of maltreatment/neglect impair her ability to understand and safely
provide for the children’s needs.” Moreover, it was “suspected that [P.G.] may
have some delays or cognitive limitations as well,” but that it was not clear

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whether he had completed a psychological evaluation, as required under the
CHIPS orders, at the time the TPR petitions were filed.

¶11 At a preliminary hearing on the TPR petitions held in May 2020,
counsel for S.T. challenged the sufficiency of the petitions, and P.G. joined that
challenge. The trial court denied the motion. The court noted that many of the
allegations against P.G. were incorporated from the allegations against S.T., but
observed that because P.G. had been living with S.T. since 2017, he “has
essentially allowed these children to be exposed to that hazardous living
environment.” The court further stated that the allegations in the petitions inferred
that P.G. “doesn’t fully understand the danger the children are subjected to if in
fact they were returned to the care of [S.T.].” Therefore, the court found that the
petitions provided sufficiently specific allegations as to the claims against both
P.G. and S.T.

¶12 P.G. then filed a separate motion to dismiss the petitions on the
ground that the COVID-19 pandemic had “adversely affected” his ability to satisfy
the requirements of the CHIPS orders and, as a result, a finding of unfitness would
violate his due process rights. Specifically, P.G. claimed that the visitation
condition was interrupted between March and June 2020 when the visits were
switched to virtual; that he lost his job due to the pandemic and was unable to pay
his rent, resulting in an eviction action being filed against him; and that his
subsequent work schedule through a temporary employment agency kept him from
timely completing his psychological evaluation.

¶13 At a pretrial conference hearing in January 2021, the trial court
denied P.G.’s motion. The court stated that it was a matter for the fact-finder to
determine whether the conditions of the CHIPS orders had been met, and P.G.

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conceded that point. P.G. further acknowledged that the TPR petitions, which
listed his failure to meet the CHIPS conditions as one ground for his parental
rights being terminated, had been filed in February 2020—before the stay-at-home
mandates due to the pandemic were imposed—and it was noted that the State’s
burden for proving that ground would be based on the facts and circumstances at
the time the petitions were filed.

¶14 A court trial regarding the grounds phase of the TPR proceedings
was set for February 2021. However, just prior to the start of the trial, P.G. opted
to enter a no-contest plea to the continuing CHIPS ground, with the State agreeing
to dismiss the ground of failure to assume parental responsibility. At the
subsequent dispositional phase of the proceedings, the trial court determined that it
was in the best interests of the children that both P.G.’s and S.T.’s parental rights
be terminated. This appeal follows.

DISCUSSION

¶15 The sufficiency of a TPR petition is a question of law that we review
de novo. See Sheboygan Cnty. v. D.T., 167 Wis. 2d 276, 282-83, 481 N.W.2d 493
(Ct. App. 1992). Our review of whether a TPR petition is sufficient is dictated by
the requirements set forth in WIS. STAT. § 48.42(1). That statute requires that such
petitions “set forth with specificity” the name, birth date, and address of the child;
the names and addresses of the child’s parents; information relating to the current
custody of the child, as set forth in WIS. STAT. § 822.29; information regarding
whether the child may be subject to the federal Indian Child Welfare Act; and, if
the parents are not consenting to the termination of their parental rights, a
statement “of the grounds for involuntary termination of parental rights under

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[WIS. STAT. §] 48.415 and a statement of the facts and circumstances which the
petitioner alleges establish these grounds.” See WIS. STAT. § 48.42(1).

¶16 Citing State v. Courtney E., 184 Wis. 2d 592, 516 N.W.2d 422
(1994), P.G. asserts that a TPR petition must meet the same requirements as a
criminal complaint; that is, it “must contain facts ‘which are themselves sufficient
or give rise to reasonable inferences which are sufficient to establish probable
cause.’” Id. at 601 (citation omitted). However, in Courtney E., our supreme
court was reviewing the sufficiency of a CHIPS petition, the requirements for
which are governed by WIS. STAT. § 48.255. See Courtney E., 184 Wis. 2d at
601. In its analysis of that issue, the court stated that in order for a CHIPS petition
to be sufficient, it must satisfy the requirements of § 48.255, and that “[i]n
particular, the [CHIPS] petition must provide ‘reliable and credible information
which forms the basis of the allegations necessary to invoke the jurisdiction of the
court ….” Courtney E., 184 Wis. 2d at 600 (quoting § 48.255(1)(e)).

¶17 Thus, the court’s analysis in Courtney E. focused on the statutory
requirement for a CHIPS petition to state with specificity the basis for the court to
invoke jurisdiction over a child, similar to the requirement of a criminal complaint
to specifically state the reasons a court may invoke jurisdiction over a defendant.
That requirement is not included in the statutory requirements for a TPR petition,
see WIS. STAT. § 48.42(1), presumably because at the time a TPR petition is filed,
the court has already invoked jurisdiction over the child through a CHIPS petition
and resulting dispositional order.

¶18 P.G. argues that because both CHIPS petitions and TPR petitions
“arise under Chapter 48, there is no reason to believe that the principles which
apply to the sufficiency of one type of Chapter 48 petition would not apply with

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equal force to the sufficiency of another type.” We disagree. The statutes
outlining the requirements for each type of petition, while similar, are different
with respect to the addition of the requirement relating to the invocation of
jurisdiction over the child for CHIPS petitions. According to the tenets of
statutory interpretation, “[s]tatutory language is read where possible to give
reasonable effect to every word, in order to avoid surplusage.” State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681
N.W.2d 110. Adopting P.G.’s interpretation would render the additional
requirement for CHIPS petitions regarding the invocation of jurisdiction mere
surplusage. We cannot do that and still give WIS. STAT. § 48.255(1)(e) its “full,
proper, and intended effect.” See State ex rel. Kalal, 271 Wis. 2d 633, ¶44.
Therefore, we reject P.G.’s contention that a TPR petition must rise to the level of
a criminal complaint and establish probable cause for the alleged claims.

¶19 We thus review the TPR petitions for compliance with the
requirements set forth in WIS. STAT. § 48.42(1); specifically, whether the State set
forth with specificity “a statement of the facts and circumstances which the
petitioner alleges establish [the] grounds” for the termination of P.G.’s parental
rights. See § 48.42(1)(c)2. Furthermore, “in reviewing the sufficiency of a
pleading in a juvenile court proceeding, we may draw reasonable inferences from
the allegations in the petition.” Monroe Cnty. v. Jennifer V., 200 Wis. 2d 678,
684, 548 N.W.2d 837 (Ct. App. 1996).

¶20 As the trial court did in its analysis of this issue, we reviewed the
factors relating to the grounds alleged by the State to determine whether the
petitions provided sufficient notice relative those factors. We conclude that the
allegations in the TPR petitions as discussed in this opinion, and the reasonable

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inferences that can be drawn from those allegations, were sufficiently specific to
provide P.G. with proper notice as to the grounds for the petitions.

¶21 We next turn to P.G.’s argument that the COVID-19 pandemic
interfered with his ability to meet the conditions of the CHIPS orders, and thus the
finding that he was an unfit parent violated his right to due process. “Substantive
due process has been traditionally afforded to fundamental liberty interests, such
as marriage, family, procreation, and bodily integrity,” and an analysis of this
issue seeks to “balance[] the [S]tate’s compelling interests with its chosen method
of protecting those interests.” Monroe Cnty. DHS v. Kelli B., 2004 WI 48, ¶19,
271 Wis. 2d 51, 678 N.W.2d 831. We independently review challenges to
constitutional principles. State v. Pinno, 2014 WI 74, ¶36, 356 Wis. 2d 106, 850
N.W.2d 207.

¶22 As the State points out, the current statute relating to the continuing
CHIPS ground for TPRs no longer includes a provision relating to whether parents
would be able to meet the required conditions in the nine month time period
following a fact-finding hearing. Thus, the fact-finder is to consider the facts and
circumstances of the case as they existed on the date the TPR petitions were filed.
See WIS JI—CHILDREN 324. In this case, that was February 27, 2020—before the
stay-at-home mandates were imposed due to COVID-19.

¶23 Nevertheless, P.G. had the opportunity to present evidence relating
to the hardships he endured as a result of the pandemic at the disposition hearing.
See WIS. STAT. § 48.427(1). Based on that evidence, he requested an alternative
disposition—that instead of granting the TPR petitions, the CHIPS orders could
instead remain in effect, such that that he and S.T. could continue working on
meeting those conditions. See id. However, after weighing all the evidence in

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terms of the relevant factors for determining whether the parental rights should be
terminated, the trial court found that granting the TPR petitions was in the
children’s best interests.

¶24 Therefore, we conclude that P.G.’s due process rights were not
violated during this process. See Kelli B., 271 Wis. 2d 51, ¶19. Furthermore, the
“ultimate determination of whether to terminate parental rights” is a discretionary
decision that lies with the trial court. State v. Margaret H., 2000 WI 42, ¶27, 234
Wis. 2d 606, 610 N.W.2d 475. The trial court erroneously exercises its discretion
“if it does not examine the relevant facts, applies the wrong legal standard, or fails
to use a demonstrated rational process to reach a reasonable conclusion.” Brown
Cnty. v. Shannon R., 2005 WI 160, ¶37, 286 Wis. 2d 278, 706 N.W.2d 269. That
did not occur here.

¶25 Accordingly, we affirm the trial court’s orders terminating the
parental rights of P.G. to P.G., Jr., J.G., and J.G.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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