This opinion will not be published. See WIS. STAT. Rule 809.23(1)(b)4.
¶1 The State
¶2 A jury found that grounds existed to terminate D.P.V.'s parental rights. The trial court found that it was in the child's best interest to terminate D.P.V.'s parental rights and entered the TPR order but inserted the stay provision.
¶3 We agree with the State that the trial court lacked the authority for the stay. The legislature's enumeration of procedures for disposing of TPR matters under WIS. STAT. Ch. 48 is exclusive.
¶4 We reject D.P.V.'s argument on cross-appeal that if the stay provision is invalid, the entire TPR order is invalid. The stay provision is easily divisible from the TPR order and accordingly we modify the trial court's TPR order to expurgate the stay provision while retaining the court's TPR order. We reverse the trial court's denial of the State's post-dispositional motion and remand to the trial court for further proceedings consistent with this decision.
¶5 T.A.V. was born in June 2013 and spent more than six weeks in the neonatal intensive care unit being weaned from the drugs that she was exposed to in utero. A CHIPS order was entered in August 2013. She was continuously placed outside of a parental home.
¶6 A petition to terminate D.P.V.'s parental rights was filed October 8, 2014.
¶7 A dispositional hearing was held April 29, 2016. On May 2, 2016, the trial court issued a written opinion letter outlining the order he intended to make terminating parental rights as to both parents but staying the order. He concluded the letter by asking the State to draft the order terminating parental rights for his signature. On May 10, the State filed a motion for post-disposition relief, seeking to have the order implemented without the stay.
¶8 The trial court heard the State's motion on June 13, 2016, and on June 14, 2016, entered the TPR order and an order denying the post-disposition motion. The TPR order stated,
(Some formatting and capitalization altered.)
¶9 The order also included the following statement:
¶10 At the motion hearing, conceding the lack of any specific legal authority for the stay, the trial court stated that it was relying on the inherent authority of the trial court to do all things necessary to carry out its functions. The trial court denied the State's post-disposition motion. The notice of appeal and notice of cross-appeal were filed on October 17, 2016 and October 25, 2016.
¶11 Subsequent to the termination order and the order denying the motion for post-disposition relief, the record shows that the State brought a new motion dated October 3, 2016, to lift the stay and that D.P.V. opposed the motion on the grounds that it was based on allegations of conduct that occurred prior to the TPR order. But the subsequent events and filings are not in the appellate record.
¶12 Despite this omission from the record, the parties each describe the events of October 18, October 25, and November 2 in their briefs, as well as the letter of October 25, and neither raises a factual dispute with the other's description. Additionally, CCAP entries by court staff confirm the events as described by the parties.
1. The trial court lacked authority to stay the order terminating D.P.V.'s parental rights.
a. The June 14, 2016 order is a properly appealable order under WIS. STAT. § 809.107.
¶13 As a threshold matter, we address the argument made by D.P.V. that the State's appeal should be dismissed because the TPR order from which the State appeals is not a final order, and, he implies, this court has no jurisdiction. We disagree because we conclude that the order was properly appealable under the statutory scheme for TPR orders, which differs from the appeal process for other orders. Alternatively, although we conclude that a TPR order does not have to satisfy the test for finality for non-TPR orders, we further conclude that in this case, the order satisfies the test and would be properly appealable under that analysis as well.
¶14 Determining whether an order is appealable involves the interpretation and application of statutes and therefore is a question of law subject to independent review.
¶15 Most significantly, WISCONSIN STAT. § 809.107 does not restrict appeals of WIS. STAT. § 48.43 orders or judgments to "final" orders. The clear language of the statute says:
WIS. STAT. § 809.107(bm).
¶16 The legislature was clearly aware of the ongoing nature of WIS. STAT. § 48.43 proceedings when it drafted WIS. STAT. § 809.107 because it stated in the final sentence of section (2)(bm) that if a final order was filed after a party took an appeal from an order or judgment, the final order would be included into the party's appeal. "If the record discloses that final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the judgment or order appealed from on the day of the entry of the final judgment or order." WIS. STAT. § 809.107(2)(bm). Notably it did not say that the subsequent filing removed the appeal court's jurisdiction over the appeal taken of the earlier non-final order.
¶17 Although we conclude he is incorrect, we address D.P.V.'s argument on the need for a final order in the interest of completeness. D.P.V. relied on WIS. STAT. § 808.03 which states the need for a final order prior to appeal: "A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties[.]" WIS. STAT. § 808.03(1). He argues that because the trial court here expressly stated an intent to hold future review hearings after entry of the TPR order, it was clear this was not a final order.
¶18 Even if a "final" order is required under WIS. STAT. § 809.107—and, as set forth above, we do not agree that it is—we conclude that this order is final within the meaning of WIS. STAT. § 808.03 and supporting case law, notably
¶20 This is precisely what the trial court did here. The TPR order stated that "the parental rights of C.L.P. and D.P.V. are terminated." The order also stated, "This is a final order for purposes of appeal." (Emphasis added.) The fact that subsequent actions were taken by the trial court is irrelevant to the determination of whether the order was a final one. See
¶21 Additionally, we note that although we reached the merits of his argument for the sake of completeness, we agree with the State that D.P.V. is judicially estopped from arguing that the order is not final and thus not appealable because he successfully argued in the trial court that the court had lost competence to proceed due to the State's appeal. He wrote on page nine of his appellate brief, "[i]n a nutshell, then, on October 18, 2016, due to the filing of the notice of appeal, the circuit court had already lost the power to rule on the state's motion." Implicit in his statement is a concession that the notice of appeal was proper, and hence, was made on a final appealable order. The trial court agreed with him that it lacked jurisdiction to hold further hearings due to the appeal and so ruled on November 2, 2016. Under the doctrine of estoppel, a party is precluded from taking inconsistent positions on an issue. The doctrine applies under the following circumstances, all of which are true here: "the later position must be clearly inconsistent with the earlier position; . . . the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position[.]"
¶22 For all of the foregoing reasons, the TPR order of June 14, 2016 is a properly appealable order.
b. The trial court lacked the authority to stay the TPR order under WIS. STAT. § 48.427(1).
¶23 The State argues that when the trial court ordered the termination of D.P.V.'s parental rights, the trial court was without authority under the WIS. STAT. § 48.427(1) statute, which explicitly defines the trial court's options for disposition, to stay that order. This court agrees.
¶24 The statute governing dispositions in TPR cases states, "After receiving any evidence related to the disposition, the court shall enter one of the dispositions specified under subs. (2) to (3p) within 10 days." See WIS. STAT. § 48.427(1). The dispositions specified under (2) and (3)
WIS. STAT. § 48.427(2) and (3). Thus the trial court's only choices are dismissal or an order terminating parental rights. And it must do so within ten days.
¶25 The legislature limited the trial court's power in Chapter 48 cases to only those powers specifically conferred. In
¶28 That would be sufficient, but
¶29 The very structure of the Children's Code regarding TPRs shows the legislature's clear intent that there be timely disposition of children's placement issues. The policy goals of the Children's Code include the following statement:
WIS. STAT. § 48.01(1)(a).
¶30 Also included among the "express legislative purposes" is the following:
WIS. STAT. § 48.01(1)(gg).
¶31 In light of that purpose, the legislature requires the State to file a petition to terminate parental rights in specified circumstances, which apply here, and set strict timelines:
WIS. STAT. § 48.417(1) and (1a).
¶32 Appeals are also expedited in TPR cases. See WIS. STAT. § 809.17. In view of the heavy emphasis on timely resolution of such cases, it is clear that the legislature did not intend to authorize a trial court to insert a provision staying a TPR order "for a period of six months" and leaving open the possibility of an additional six-month stay. The very structure of the Children's Code precludes the possibility that the legislature intended to authorize such a disposition.
2. The order terminating D.P.V.'s parental rights is otherwise valid, is not indivisible from the stay, and survives the striking of the stay.
¶33 We note that D.P.V. makes no appellate challenge to the merits of the TPR order. The State, GAL and D.P.V. all agree that the issues for this court to decide are solely whether the trial court had the authority to stay the order and what the proper resolution of the case is if it did not have such authority.
¶34 Having determined that the stay was without authority, we next turn to the question of the proper remedy. All parties concede that there is no Wisconsin law that directly addresses the question of how to proceed in the case of a TPR order with an unlawful provision.
¶35 D.P.V. argues that the TPR order is analogous to a contract and employs contract law to argue that the stay provision is indivisible from the rest of the order. See 27 Restmt. (Second) of Contracts, sec. 183 cmt. a (1981) (unjust under some circumstances to "enforc[e] the agreement as to only one part.") He therefore argues that "[i]f the stay is invalid, then so is the termination order." He argues that the fact that the trial court added the provision staying the order means that the trial court "already found that the evidence presented at the dispositional hearing does not warrant termination." He argues that the petition must be dismissed if the stay is invalid.
¶36 The State argues that "[t]here is no clear dictate in this record that supports outright dismissal of the TPR order." The GAL agrees: "Respondent's request to dismiss is not supported by anything in the record or the law." Both seek either immediate implementation of the order or remand for entry of a dispositional order.
¶37 We agree with the State and GAL. D.P.V.'s indivisibility argument is undeveloped. He cites to business cases for the proposition that a court has the authority to remove an offending provision provided it is not indivisible from the whole, but he does not apply that holding to the facts here other than in a conclusory fashion. We see guidance in
¶38 Here, the stay provision in the TPR order is completely divisible. It appears as a separate one-line paragraph entitled "Other." It is a stand-alone. The entirety of the TPR order is completely understandable in the absence of the stay line. It must be enforced.
¶39 Appellate courts routinely excise those portions of orders that are unlawful or unwarranted by the evidence. See, e.g.,
By the Court.—Order denying motion for relief reversed, order terminating parental rights modified and, as modified, affirmed.