Fond du Lac County DSS v. T. P. W., Jr

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.
October 9, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2024AP553 Cir. Ct. No. 2021TP10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

FOND DU LAC COUNTY DEPARTMENT OF SOCIAL SERVICES,

PETITIONER-RESPONDENT,

V.

T. P. W., JR,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Fond du Lac County:
TRICIA L. WALKER, Judge. Affirmed.
No. 2024AP553

¶1 NEUBAUER, J.1 T.P.W. Jr., referred to herein by the pseudonym
Fred, appeals from an order terminating his parental rights to his son, Sam (also a
pseudonym). The trial court terminated Fred’s parental rights pursuant to WIS.
STAT. § 48.415(2)(a) after a jury found that he had failed to meet the conditions
that had been established for the safe return of Sam to his home. On appeal, Fred
argues that the court violated Kenosha County Department of Human Services v.
Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, by not giving the jury
an “impossibility” instruction, which he contends was warranted because he was
incarcerated for a period of time after the conditions were imposed and, for that
reason, was unable to meet them. As explained in greater detail below, this court
concludes that the facts in this case did not support an impossibility instruction
under Jodie W., and thus, the trial court did not erroneously exercise its discretion
in declining to give it.

BACKGROUND

¶2 Sam and his sister were removed from the home of their biological
mother in May 2018, when Sam was four years old. Sam was initially placed with
Fred, who did not live with the children’s mother, but was removed the next day
and placed with his maternal grandparents. According to a report prepared by
Nancy Kartos, the social worker assigned to Sam’s case, Sam’s early years were
spent with his mother, “who exposed him to drug dealers, gun dealers, sex
offenders, and allowed him to live in an extremely filthy home.” Fred, the report
notes, was “in prison for the majority of [Sam’s] life” because of “multiple drug

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2024AP553

charges … and multiple domestic and battery charges.” As a result, he “was never
a full time caretaker to his son.”

¶3 Following Sam’s removal, the Fond du Lac County Department of
Social Services (County) commenced a child in need of protective services
(CHIPS) proceeding. At a dispositional hearing in August 2018, Sam was
determined to be in need of protection or services and placed in foster care. The
dispositional order identified the following eight conditions Fred would have to
meet in order to have Sam returned to his custody:

 “maintain safe, suitable and stable housing”;

 “participate in a parenting assessment and parenting
classes”;

 “participate in an AODA assessment”;

 “demonstrate the ability to meet [Sam]’s medical,
dental, mental health and educational needs”;

 “make all reasonable efforts to maintain stable, and
legal employment as means of support that will allow
him to support [Sam] and himself”;

 “cooperate with Fond du Lac County Department of
Social Services and his Social Worker”;

 “have no new criminal law violations”; and

 if incarcerated, “cooperate with the Fond du Lac
County Department of Social Services and any facility
in which he is incarcerated.”

¶4 Kartos reviewed the conditions with Fred in July 2018 before they
were made part of the dispositional order. According to her, Fred “did not have a
problem with them.” Kartos also discussed Fred’s “long history of incarceration”

3
No. 2024AP553

with him at that time and warned him “that if he continued down that path,” Sam
would not be allowed to live with him.

¶5 In October 2018, approximately two months after the dispositional
order was entered, Fred was incarcerated again. According to Kartos, Fred
“accrued new criminal charges and went back to prison, and then accrued more
new charges in jail and extended his stay.” He was incarcerated in April 2021
when the County filed a petition to terminate his parental rights. In the petition,
the County alleged that Sam continued to be in need of protection or services
because Fred had not met seven of the eight conditions set for Sam’s return.

¶6 A jury trial was held on the County’s petition in October 2023. At
the trial, Kartos testified about the conditions that were imposed on Fred, the
County’s efforts to help him meet them, and his progress in doing so between the
time they were imposed and the time the County filed the termination of parental
rights petition.

¶7 Kartos testified that Fred did not meet many of the conditions for
return. As to the first condition, Kartos acknowledged that Fred lived in suitable
housing between August 2018, when the conditions were imposed, and
October 2018, when he was incarcerated. After his incarceration, however, he was
unable to meet this condition. Kartos acknowledged that the lack of stable
housing was important because the County could not return Sam to Fred while he
was incarcerated.

¶8 According to Kartos, Fred also failed to meet the second condition
of “participat[ing] in a parenting assessment and parenting classes.” Kartos
testified that the County planned “to do a parenting program” for Fred, but he was
unable to participate because he was incarcerated. Fred testified that he enrolled

4
No. 2024AP553

in a parenting class while in the Jefferson County jail and received a certificate of
completion for it. At trial, he described the class as involving videos and role
playing to learn parenting skills. Kartos confirmed that Fred informed her that “he
was in a parenting program” for a portion of the time he was incarcerated but
testified that he was unable to provide any details about it, so that program “would
probably not meet that condition.”

¶9 The third condition required Fred to participate in an alcohol and
other drug abuse (AODA) assessment. Kartos confirmed that Fred did not
complete an assessment. She testified that “[t]here really wasn’t much [she] could
do from the outside” once Fred was incarcerated, but that she knew he had been
offered “AODA counseling and programming” while incarcerated. A social
worker at the prison where Fred was incarcerated testified that he was offered
AODA programming before April 2021 but refused to participate. (According to
Fred, AODA and other programming was shut down during his incarceration due
to the COVID-19 pandemic.)

¶10 The fourth condition required Fred to “demonstrate the ability to
meet his child’s medical, dental, mental health and educational needs.” Before
Fred was incarcerated, he was not Sam’s “main caregiver” and did not attend
Sam’s appointments. Sam’s foster mother testified that she occasionally talked to
Fred about Sam, but he did not ask specifically about medical or mental health
issues that Sam was experiencing. Kartos testified that Fred “was not able to
provide these services to [Sam]” because he was incarcerated for almost all of the
relevant time period.

¶11 Kartos also testified that Fred failed to meet the fifth condition of
making reasonable efforts to maintain stable employment so that he would be able

5
No. 2024AP553

to support Sam. Fred was employed during the two-month period before his
incarceration but lost his job when he was incarcerated. Fred testified that he
worked in the kitchen while incarcerated, but his pay from that job was not
sufficient to support Sam.

¶12 Finally, Kartos testified that Fred did not satisfy the seventh
condition of not violating the criminal law because he violated the terms of his
extended supervision and was reincarcerated in October 2018 for a period of
thirty-six months and, while serving that sentence, was involved “with a battery on
an inmate” which resulted in an additional charge and six additional months of
incarceration.2

¶13 After the close of evidence, the trial court heard argument about
whether to give the jury an “impossibility” instruction. Fred argued that the
instruction was warranted under Jodie W., in which our supreme court held that a
mother’s parental rights had been terminated in violation of her substantive due
process rights because she had been found unfit based solely on her failure to
comply with a condition of return that was impossible for her to fulfill due to her
incarceration. The trial court concluded that Jodie W. was distinguishable because
the mother in that case had been incarcerated at the time her conditions for return
were imposed, whereas Fred’s incarceration did not begin until two months after
his conditions for return were imposed. The court also noted that the County had
presented evidence tending to show that Fred failed to meet multiple conditions of
return, whereas only a single condition was at issue in Jodie W. Based on its

2
The termination of rights petition indicates that after the dispositional order was
entered, Fred was charged with falsely presenting a noncontrolled substance and later, in a
separate case, with battery by prisoners.

6
No. 2024AP553

conclusion that Jodie W. was materially distinguishable, the court declined to give
the instruction.

¶14 Instead, the trial court read to the jury an instruction that closely
tracked the pattern instruction applicable to termination proceedings in which the
ground for termination is the child’s continuing need of protection or services. See
WIS JI—CHILDREN 324. With respect to the requirement that the County prove
that Fred failed to fulfill the conditions of return, the instruction stated as follows:

In determining whether [Fred] failed to meet the
conditions established for the safe return of [Sam] to the
home, you may consider the following: The length of time
[Sam] has been in placement outside the home; the number
of times [Sam] has been removed from the home; [Fred]’s
performance in meeting the conditions for return of [Sam];
[Fred]’s cooperation with the social service agency;
[Fred]’s conduct during periods in which [Sam] had contact
with [Fred]; and all other evidence presented during this
hearing which assists you in making these determinations.

The jury returned a verdict finding that Fred had failed to meet the conditions for
return. At a subsequent disposition hearing, the court concluded that termination
of Fred’s parental rights would be in Sam’s best interest.

DISCUSSION

¶15 On appeal, Fred challenges the trial court’s decision not to give an
impossibility instruction. Because a trial court has broad discretion in instructing
juries, this court will not disturb its decisions about which instructions to give
“absent an erroneous exercise of discretion.” State v. Anderson, 2014 WI 93, ¶16,
357 Wis. 2d 337, 851 N.W.2d 760. However, whether a jury instruction is
appropriate under the given facts of a case is a legal issue that this court reviews
de novo. Id.

7
No. 2024AP553

¶16 The parties’ arguments focus on Jodie W., so this court begins with
a discussion of that case. In Jodie W., Kenosha County filed a CHIPS petition
concerning Jodie’s son two months after Jodie was incarcerated. Jodie W., 293
Wis. 2d 530, ¶¶4-5. Several months later, the circuit court entered a dispositional
order imposing conditions she would have to meet to have her son returned,
including obtaining and maintaining a suitable residence. Id., ¶¶6-7. The county
later filed a petition to terminate Jodie’s rights under WIS. STAT. § 48.415(2) on
the ground that she had not met the conditions and, due to her continuing
incarceration, likely would not do so within the next year. Jodie W., 293 Wis. 2d
530, ¶8. Jodie entered a no-contest plea, acknowledging that she would not be
able to meet the suitable residence condition due to her incarceration. Id., ¶10.
The court accepted Jodie’s plea as the basis for a finding of unfitness and later
entered an order terminating her parental rights. Id., ¶¶11, 16.

¶17 On appeal, our supreme court framed the issue as follows: “whether
the circuit court’s finding of parental unfitness violated Jodie’s constitutional right
to substantive due process because one or more of the court-ordered conditions of
return were impossible for Jodie to meet at the time they were imposed.” Id., ¶23.
The court recognized that because Jodie had a fundamental liberty interest in
parenting her son, the government could only terminate her rights if WIS. STAT.
§ 48.415(2) had been narrowly tailored to meet a compelling interest. Jodie W.,
293 Wis. 2d 530, ¶¶39-41. Though the statute was aimed at effecting a
compelling interest in “protect[ing] children from unfit parents,” id., ¶41, the court
concluded that neither the “conditions of return [nor] the circuit court’s evaluation
of Jodie’s failure to meet these conditions [had been] narrowly tailored to meet
that interest.” Id., ¶55.

8
No. 2024AP553

¶18 Narrow tailoring, in our supreme court’s view, requires an
individualized evaluation of “the particular facts and circumstances relevant to the
parent and child,” including:

the parent’s relationship with the child and any other child
both prior to and while the parent is incarcerated, the nature
of the crime committed by the parent, the length and type
of sentence imposed, the parent’s level of cooperation with
the responsible agency and the Department of Corrections,
and the best interests of the child.

Id., ¶50. Instead of examining this broader array of circumstances, the circuit
court had found Jodie unfit solely based on her failure to fulfill a condition that
she could not possibly fulfill because of her incarceration. The supreme court
made clear that that was not a constitutionally sufficient basis to terminate her
rights. See id., ¶49 (“We … conclude that a parent’s failure to fulfill a condition
of return due to his or her incarceration, standing alone, is not a constitutional
ground for finding a parent unfit.”); id., ¶50 (“We simply conclude that a parent’s
incarceration is not itself a sufficient basis to terminate parental rights.”); id., ¶55
(“We conclude that the circuit court improperly deemed Jodie unfit solely by
virtue of her status as an incarcerated person without regard for her actual
parenting activities or the condition of her child ….”).

¶19 In the present case, Fred contends that the trial court erred because it
misread Jodie W. to apply only when a condition is impossible to fulfill at the time
it is imposed. He argues that “[w]hat matters is whether a person’s incarceration
makes a condition impossible to satisfy.” He contends that “the jury instructions
and verdict allowed the jury to find that the grounds were met solely because
Fred’s incarcerated status made it impossible for him to satisfy one or more
conditions.” Specifically, he states that the jury could have found that he failed to

9
No. 2024AP553

meet the conditions of return “because it was impossible for Fred to provide
housing or be employed while he was incarcerated.”

¶20 The County disagrees, arguing that Jodie W. did not require an
impossibility instruction in this case because (1) it was not impossible for Fred to
meet the conditions for return at the time they were imposed and (2) Fred’s “rights
were not terminated solely because of unmet conditions that were arguably made
impossible due to being incarcerated.” The County emphasizes that the evidence
showed that Fred failed to satisfy certain conditions for reasons entirely unrelated
to his incarceration. As an example, it notes that Fred did not meet the condition
of refraining from new criminal violations because he chose to engage in criminal
behavior, not because his incarceration made it impossible for him to avoid doing
so.

¶21 This court agrees with the County’s reading of Jodie W. That case
stands for two important propositions that materially distinguish it from the
present case. First, a condition of return is “impossible” to meet under Jodie W. if
the parent cannot possibly fulfill it at the time it is imposed. Fred’s argument to
the contrary, in which a condition becomes “impossible” to meet any time a parent
is incarcerated and thereby becomes unable to fulfill it, reads Jodie W. too broadly
and in a way that is untethered to the facts of that case. The mother in Jodie W.
was incarcerated five months before her conditions of return were imposed, a fact
that shaped our supreme court’s framing of her due process challenge.
See Jodie W., 293 Wis. 2d 530, ¶¶4, 23 (defining issue as whether conditions of
return violated substantive due process because they “were impossible for Jodie to
meet at the time they were imposed” (emphasis added)). The court in Jodie W.
concluded that her conditions of return had not been narrowly tailored to her
individual circumstances, as required under substantive due process principles,

10
No. 2024AP553

because they included tasks that were impossible for her to accomplish from the
moment they were imposed. Id., ¶¶49, 55.

¶22 Here, by contrast, Fred has not shown that any of the conditions
imposed upon him were impossible for him to meet at the time they were imposed.
Though Fred had apparently been incarcerated for periods of time before the
initiation of the CHIPS proceeding, he does not claim that he was incarcerated
when the dispositional order containing the conditions of return was entered in
August 2018. Nor does he argue that any of the conditions were impossible for
him to meet at that time. His claim of impossibility is instead linked to a period of
incarceration that began two months later, in October 2018. While this court
agrees with Fred that the jury could have concluded that his incarceration in
October 2018 hindered him in meeting those (and other) conditions, his
incarceration did not make the conditions impossible to meet under Jodie W.

¶23 The second way in which Jodie W. differs materially from the
present case concerns the basis for the finding of unfitness. The supreme court in
Jodie W. 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. In the present case, by contrast, the County presented
evidence that Fred had failed to meet all but one of the court-ordered conditions.
The County reviewed this evidence in its closing argument specifically noting
several conditions that Fred could have made efforts toward meeting while
incarcerated, such as making telephone calls to maintain contact with Sam and
participating in AODA programming. Moreover, the evidence was undisputed
that Fred failed to comply with the condition requiring him to avoid violations of
the criminal law.

11
No. 2024AP553

¶24 Whereas the finding of unfitness in Jodie W. was based on the
mother’s stipulation that she failed to meet one condition, in the present case, the
jury had evidence before it (some of which was undisputed) that Fred had not met
multiple conditions of return. 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.

¶25 Finally, Fred argues that “the jury instructions allowed [his] rights to
be terminated without any consideration of the contextual factors that Jodie W.
deemed relevant,” such as the nature of his criminal offenses, the sentence
imposed, and his relationship with Sam. Again, this court disagrees. Although the
jury instruction did not specifically direct the jury to consider those factors, it did
not foreclose their consideration either. The jury was instructed that it could
consider, among other things, Fred’s “performance in meeting the conditions for
return”; his cooperation with the County; his “conduct during the periods in which
[Sam] had contact with [him]”; and “all other evidence presented during th[e]
hearing which” the jury found helpful. In considering Fred’s efforts to meet the
conditions of return, the jury could consider the evidence showing that Fred
committed two criminal offenses after the dispositional order, one of which
resulted in the revocation of his extended supervision and his return to prison to
serve a term of thirty-six months, during which time he committed a second
offense that added six additional months of incarceration. In considering Fred’s
conduct during the times he had contact with Sam, the jury could consider
evidence relevant to the nature and depth of his relationship with Sam. The
instruction given to the jury closely tracked the pattern instruction that was

12
No. 2024AP553

approved in 2018, twelve years after Jodie W. was decided. See WIS JI—
CHILDREN 324, Comment. This court is not persuaded that the instruction
misstated the applicable law or misled the jury. See Peplinski v. Fobe’s Roofing,
Inc., 193 Wis. 2d 6, 23-24, 531 N.W.2d 597 (1995).

CONCLUSION

¶26 The trial court correctly concluded that the present case was
materially distinguishable from Jodie W. and did not require the giving of an
impossibility instruction to the jury. Its decision not to give the instruction was
not an erroneous exercise of discretion.

By the Court.—Order affirmed.

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

13