Reimer v. Badger Wholesale Co., Inc.
433 N.W.2d 592 (1988)
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Rule of Law:
To terminate parental rights on the grounds of a continuing need for protection or services, the state must strictly comply with the mandatory statutory requirement to include a specific written warning in every court order that places a child outside the parental home.
Facts:
- On May 17, 1983, the Juneau County Department of Social Services (the department) took temporary physical custody of D.F.R.'s son, D.F.
- On June 30, 1983, physical placement of D.F. was returned to his mother, D.F.R., though legal custody remained with the department.
- On November 10, 1983, the department took temporary physical custody of both D.F. and D.H. and placed them in a foster home.
- On March 6, 1984, the trial court issued dispositional orders finding the children in need of protection and services and placing them in a foster home.
- The order concerning D.H. had an attachment with statutory text about termination of parental rights, but D.F.R. did not sign the acknowledgment form.
- The order concerning D.F. did not contain any attachment or written warning regarding the potential termination of parental rights.
- On November 19, 1984, the court entered an order extending the foster care placement, which did not contain the required statutory warnings.
- On May 31, 1985, the court entered another stipulated order extending the placement, which also lacked the required statutory warnings.
Procedural Posture:
- The Juneau County Department of Social Services filed petitions in the trial court seeking the involuntary termination of D.F.R.'s parental rights to her children, D.F. and D.H.
- The case was tried before a jury.
- During the trial, the court directed a verdict on one element of the special verdict, affirmatively finding that the children had been placed outside the home pursuant to orders containing the required statutory warning.
- The jury found that statutory grounds existed to terminate D.F.R.'s parental rights.
- D.F.R. filed a post-verdict motion for judgment notwithstanding the verdict or for a new trial, which the trial court denied.
- The trial court entered a final dispositional order terminating D.F.R.'s parental rights.
- D.F.R. (appellant) appealed the termination order to the Court of Appeals of Wisconsin.
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Issue:
Does the failure to include the mandatory written warning required by sec. 48.356(2), Stats., in every court order placing a child outside the home prevent the state from terminating parental rights on the grounds of a continuing need for protection or services under sec. 48.415(2)?
Opinions:
Majority - Sundby, J.
Yes. The failure to include the mandatory written warning in every court order placing a child outside the home is fatal to a petition to terminate parental rights on those grounds. The statutory requirement in sec. 48.356(2), Stats., to provide written notice of the grounds for termination of parental rights in any order placing a child outside the home is mandatory, unequivocal, and imperative. Citing the precedent set in In re M.A.M., the court emphasized that the legislature created a 'panoply of substantive rights and procedures' to protect parents from the arbitrary or precipitous termination of their rights. The written notice is a key part of these procedural safeguards. Substantial compliance, such as providing oral warnings in court, is insufficient to satisfy the statute's explicit command for a written notice within the order itself. The doctrine of harmless error cannot be applied to excuse the court's failure to comply with this command because the notice is a substantive prerequisite to establishing the grounds for termination. Because several of the court orders placing D.F.R.'s children outside the home lacked the required written notice, the department failed to establish the grounds for termination under sec. 48.415(2).
Analysis:
This decision establishes that procedural requirements in termination of parental rights (TPR) statutes are not mere formalities but substantive prerequisites that the state must strictly adhere to. It elevates the written notice requirement to an essential element of the state's case, meaning the grounds for termination cannot be legally established without proof of this notice in every relevant order. This precedent significantly strengthens procedural protections for parents, signaling to lower courts and state agencies that any deviation from the statutory mandates, such as substituting oral warnings for written ones or arguing 'substantial compliance,' will be fatal to a TPR petition. The ruling reinforces the principle that the 'awesome power' of the state to sever the parent-child bond must be exercised with scrupulous attention to the procedural safeguards established by the legislature.
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