                                                        2016 WI 35

                  SUPREME COURT         OF    WISCONSIN
CASE NO.:              2014AP2431
COMPLETE TITLE:        In re the termination of parental rights to
                       Matthew D., a person under the age of 18:

                       St. Croix County Department of Health and Human
                       Services,
                                 Petitioner-Respondent-Petitioner,
                            v.
                       Michael D.,
                                 Respondent,
                       Juanita A.,
                                 Respondent-Appellant.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                        (Reported at 360 Wis. 2d 492, 864 N.W.2d 121)
                                 (Ct. App. 2015 – Unpublished)

OPINION FILED:         May 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 17, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             St. Croix
   JUDGE:              Edward F. Vlack, III

JUSTICES:
   CONCURRED:          ROGGENSACK, C. J. concurs, joined by BRADLEY, R.
                       G., J.
                       PROSSER, J. concurs
                       BRADLEY, R. G., J. concurs
  DISSENTED:           ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
                       (co-authored)
  NOT PARTICIPATING:


ATTORNEYS:
       For the petitioner-respondent-petitioner, there were briefs
by Steven L. Miller and St. Croix Department of Health and Human
Services, and oral argument by Steven L. Miller.
    For the respondent-appellant, there was a brief by Susan E.
Alesia, assistant state public defender, and oral argument by
Susan E. Alesia.




                              2
                                                                          2016 WI 35
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No. 2014AP2431
(L.C. No.    2013TP10)

STATE OF WISCONSIN                              :            IN SUPREME COURT

In re the termination of parental rights to
Matthew D., a person under the age of 18:

St. Croix County Department of Health and Human
Services,

             Petitioner-Respondent-Petitioner,                         FILED
       v.                                                         MAY 12, 2016
Michael D.,                                                          Diane M. Fremgen
                                                                  Clerk of Supreme Court
             Respondent,

Juanita A.,

             Respondent-Appellant.




       REVIEW of a decision of the Court of Appeals.                 Reversed.


       ¶1    REBECCA G. BRADLEY, J.            The issues before us arise

from   St.    Croix      County's   petition   to    terminate       Juanita       A.'s

parental rights to her son, Matthew D., born March 23, 2009.

The petition alleges both that Matthew was a child in continuing

need of protection or services ("continuing CHIPS"), under Wis.
                                                                        No. 2014AP2431



Stat. § 48.415(2)(2013-14),1 and that Juanita failed to assume

parental responsibility, under Wis. Stat. § 48.415(6).2                        We must

determine        whether      Juanita        received     proper      notice       under

§ 48.415(2), and, if so, whether sufficient evidence supports the

remaining       elements       of      the     continuing     CHIPS       ground     for

termination.         The notice issue requires us to clarify whether

Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 607

N.W.2d 607, created an unequivocal rule that the statutorily

prescribed       written      notice    must     be   given   in   the     last    order

placing a child outside his or her home and whether six months

must pass after that last order before filing a termination of

parental rights ("TPR") petition.

       ¶2      We hold that the notice Juanita received satisfied the

statutory notice requirement in a TPR action based on continuing

CHIPS, and       that   the     evidence       was    sufficient   to     support    the

remaining elements of continuing CHIPS set forth in Wis. Stat.

§ 48.415(2).         We further hold that Steven H. did not establish a

"last order, plus six-months rule"; rather, Steven H. emphasized
that       parents   facing    termination       of    parental    rights    based    on

continuing CHIPS must have received written notice in one or


       1
       All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise indicated.     We cite to the most
recent version of the statutes because no pertinent changes have
been made.
       2
       St. Croix County's termination of parental rights petition
also included Matthew's father, Michael D., but Michael D. did
not contest the petition.


                                             2
                                                                                 No. 2014AP2431



more court orders warning them that termination may occur.                                       In

Steven      H.,    the     last       order        contained         the      written        notice;

therefore,        based    on    the       facts      in    that     particular        case,     the

written notice required by § 48.415(2) was satisfied by the last

order.

       ¶3     In    adhering          to    the       important        principle        of    stare

decisis, we do not overrule Steven H.                              Rather, we acknowledge

that two sentences in that case directly contradict the plain

language of Wis. Stat. § 48.415(2).                             As a result, our circuit

and    appellate     courts       have      issued         inconsistent        decisions        when

addressing        factual       scenarios       such       as    the    one    presented       here

where the last order does not comply with the statutory notice

requirements,        but    the       circuit      court        finds    another       order    did

comply and the parent was adequately warned that parental rights

were at stake and how to prevent a termination of those rights.

Since Steven H., circuit courts have had to decide whether to

follow      the    plain    statutory           language        when     a    parent     did    not

receive notice in the last order or follow the two sentences in
Steven H. that conflict with the court's extensive discussion of

the    legislative         purpose         of     Wis.       Stats.      §§    48.356(2)        and

48.415(2)——to provide adequate notice to parents.                                  Our opinion

clarifies     Steven       H.    so    that       our      circuit      courts    are    able     to

consistently apply the plain language of the statute, and ensure

that parents facing termination of their parental rights receive

the notice required by Wis. Stat. § 48.415(2) without delaying a

very   important      purpose         of    these       statutes——permanency             for     the
child.
                                                  3
                                                            No. 2014AP2431



    ¶4     Accordingly, we clarify Steven H., leaving intact its

analysis and discussion; however, the conflicting sentence in

paragraph 3 is withdrawn3 and we clarify that the last sentence

in paragraph 31 shall not be construed to create a last order,

six-months rule. The language in the last sentence in paragraph

31 is limited to the facts of Steven H. where only the last

order contained the written notice and the child had been out of

the home for    six months or longer.4           The plain language of

§ 48.415(2) does not require that the written notice must be in

the last order or that six months must pass after the last order

before the petition to terminate parental rights may be filed.

Accordingly,   we   reverse   the   court   of   appeals'   decision5   and

affirm the circuit court's order6 terminating Juanita's parental

rights to Matthew.

    3
       We withdraw this sentence:   "We conclude that Wis. Stat.
§§ 48.356(2) and 48.415(2) require that the last order specified
in § 48.356(2) placing a child outside the home, which must be
issued at least six months before the filing of the petition to
terminate parental rights, must contain the written notice
prescribed by § 48.356(2)."   Waukesha Cnty. v. Steven H., 2000
WI 28, ¶3, 233 Wis. 2d 344, 607 N.W.2d 607.
    4
       The last sentence in paragraph 31 of Steven H. states:
"Under § 48.415(2) the parents will be given adequate notice of
the conditions for return and time to make any necessary changes
to forestall the termination of parental rights if the last
order issued at least six months before the filing of the
petition involuntarily terminating parental rights contains the
written notice." Steven H., 233 Wis. 2d 344, ¶31.
    5
       St. Croix Cnty. DHHS v. Michael D., No.                 2014AP2431,
unpublished slip op. (Wis. Ct. App. Jan. 16, 2015).
    6
        The Honorable Edward F. Vlack presiding.


                                    4
                                                                   No. 2014AP2431



                                   I.    BACKGROUND

       ¶5    Juanita    has    physical,      cognitive    and     mental    health

challenges.        When Matthew was born on March 23, 2009, Juanita

had    two   other    sons    in   her   home,     12-year-old     John,    who   is

autistic, and 3-year-old Henry, who was removed from Juanita's

home    in   May     2009    because     Juanita    was   unable    to     properly

supervise and maintain reasonable control over Henry.                    Juanita's

parental rights to Henry were terminated in May 2012.                         When

Matthew was eight days old, he was removed from Juanita's home

based on reports that Matthew's two older brothers had dropped

him, shaken him, and were not properly supporting his head when

holding him.       Matthew was returned to Juanita at the end of May

2009.

       ¶6    In June 2009, the circuit court found Matthew to be a

child in need of protection or services following an incident

where police were called to Juanita's home and found Matthew

struggling to breathe.             Juanita told police Matthew had not

taken a breath for a minute and his lips turned blue, but she
did not want to call 911 for a "little problem like that."

Matthew was taken to the hospital for treatment. He recovered

and remained in Juanita's care subject to certain conditions and

with support and services in place to assist her.                    The circuit

court   extended      this    in-home    placement    continuing     CHIPS    order

several times.       At the end of July 2011, when Matthew was almost

two and one-half years old, he was again removed from Juanita's

home, based on concerns that Juanita could not properly care for


                                          5
                                                                No. 2014AP2431



him and that her inability to adequately supervise Matthew put

him in danger.

       ¶7     In August 2011, the circuit court issued a written

CHIPS order changing Matthew's placement from Juanita's home to

a foster home.         At a court hearing on October 5, 2011, where

Juanita appeared with her lawyer, the circuit court read the TPR

warnings to Juanita, and on October 11, 2011, the court issued a

dispositional order amending the August order and attaching the

conditions Juanita was required to meet before Matthew could be

returned to her home.        This October 11 order also had attached a

"Notice Concerning Grounds to Terminate Parental Rights" that

Juanita had signed.          Under Wis. Stat. § 48.356, whenever the

court orders a child to be placed outside the home because the

child has been found to be in need of protection or services,

the court must orally inform the parent—if present in court—of

any applicable grounds for termination of parental rights and

the conditions necessary for the child to be returned to the

home.       Additionally, any written order placing a child outside
the home, or extending the out-of-home placement, must contain

this information.

       ¶8     Juanita returned to the circuit court on December 12,

2011, where the court again gave oral TPR warnings to Juanita

and ordered an extension of the October 11 dispositional order.

The    extension   contained    a    provision   notifying      Juanita   that:

"All conditions of the dispositional order/consent decree remain

in    effect,"   but   the   court   did   not   attach   the    separate   TPR
warnings.      Juanita appeared for another hearing on September 6,
                                       6
                                                                       No. 2014AP2431



2012, where the circuit court again gave her oral TPR warnings.

On    September     11,    2012,     the       circuit    court      issued   another

extension order, which contained the same language noted above:

"All conditions of the dispositional order/consent decree remain

in effect" but it did not attach separate TPR warnings.

      ¶9     St. Croix County first filed a TPR petition as to

Matthew     in   January    of     2013,   but     it     was    dismissed    without

prejudice on June 12, 2013 because the prosecutor inadvertently

failed to appear for the pre-trial hearing.                      On June 18, 2013,

St.     Croix    County    filed    a   second      TPR    petition      seeking    to

terminate Juanita's parental rights based on continuing CHIPS

under     Wis.   Stat. § 48.415(2), and           failure       to   assume   parental

responsibility under Wis. Stat. § 48.415(6).                         On September 4,

2013, the circuit court issued another extension order, which

contained the same language noted above:                  "All conditions of the

dispositional order/consent decree remain in effect" but it did

not attach separate TPR warnings.7

      7
       In her brief, Juanita emphasizes the numerous written
orders in this case: "There were 27 written orders in Matthew's
CHIPS case[.]"   We note that only 4 of the 27 written orders
were CHIPS orders requiring written notice under Wis. Stat.
§ 48.356(2). Juanita also emphasizes that there were ten CHIPS
court hearings in this case.    We note that seven of those ten
hearings required oral TPR warnings under Wis. Stat. § 48.356(1).
Juanita received oral warnings at three of the seven hearings.
The deficiencies of these notices and warnings under § 48.356 in
Matthew's CHIPS case do not affect our holding that Juanita
received sufficient notice in this TPR case because the TPR
statute based on continuing CHIPS grounds requires proof only
that the written notice under § 48.356(2) be given in one or more
of the CHIPS orders.


                                           7
                                                                No. 2014AP2431



    ¶10     The fact-finding hearing, tried to the court, occurred

in December 2013.        After St. Croix County presented its case,

Juanita moved the circuit court to dismiss the TPR petition,

arguing failure of proof on the elements and inadequate notice

contrary to Wis. Stat. § 48.415(2) and Wis. Stat. § 48.356.                   The

circuit court denied both motions.            With respect to the notice

issue, the circuit court ultimately ruled                  Steven H.     did not

establish    an    unequivocal     "last   order,   plus    six-months    rule."

Instead, it held that "substantial compliance" with the notice

statute was sufficient.            It reached this conclusion based on

Steven    H.'s     emphasis   on     the   legislative       purpose     of   the

Children's Code, the court of appeals' interpretation of Steven

H. in Waushara County v. Lisa K., 2000 WI App 145, 237 Wis. 2d

830, 615 N.W.2d 204, and Steven H.'s discussion that the purpose

of the notice statutes "is meant to ensure that a parent has

adequate notice of the conditions with which the parent must

comply for a child to be returned to the home.                  The notice is

also meant to forewarn parents that their parental rights are in
jeopardy."       Steven H., 233 Wis. 2d 344, ¶37.           The circuit court

then found the notice given to Juanita sufficient to comply with

the statutes:

    [Notice to Juanita] was sufficient under § 48.356(2)
    to inform her that her parental rights were in danger
    of being terminated and advising her of the conditions
    necessary for the return of the child. Although only
    one TPR warning was written, this Court finds it is
    not fatal that the 2012 extension order did not
    contain written TPR warnings.    From the date of the
    October 5, 2011, extension hearing, [Juanita] appeared
    before the court, with counsel, on at least ten

                                       8
                                                                No. 2014AP2431


    different occasions related to this matter.     She was
    given a written TPR warning on October [11], 2011, and
    given oral TPR warnings on three occasions including:
    October 5, 2011, December 12, 2011, and September 6,
    2012.   Less than five months after the September 6,
    2012, TPR warnings were given, the first [TPR]
    Petition . . . was filed.   The current [TPR] Petition
    . . . was filed less than one year after the September
    6, 2012, hearing.    The number and frequency of the
    court proceedings, in addition to four occasions since
    October 5, 2011, [Juanita] was orally given TPR
    warnings, lead this Court to conclude that she had
    sufficient notice under § 48.356(2).     [Juanita] had
    notice of the conditions required of her for the child
    to return to her care and that her legal rights were
    in jeopardy if she did not meet those conditions.
    ¶11    Further, the circuit court rejected Juanita's claim

that she was "confused" about whether termination was looming:

    This Court has noted the number and frequency of the
    [CHIPS] proceedings . . . as well as the number of
    warnings, both oral and written, she was given in the
    two years prior to the filing of the current Petition.
    In   addition,   she  has   had   full   representation
    throughout [the CHIPS proceedings] and these present
    proceedings, and has not raised, through counsel or
    personally, any issue of confusion with regard to the
    obligations, conditions, or consequences until now.
    ¶12    The    circuit     court       found    grounds   existed       on    the

continuing CHIPS allegation, but that St. Croix County failed to

prove   Juanita   had   not        assumed    parental    responsibility          for

Matthew.    The    circuit        court   found    Juanita   unfit   to     parent

Matthew and the case proceeded to a dispositional hearing.                        At

the conclusion of the dispositional hearing, the circuit court

found it was in Matthew's best interests to terminate Juanita's

parental   rights.          The     circuit       court   entered    the        order

terminating Juanita's parental rights in May 2014.



                                          9
                                                                             No. 2014AP2431



      ¶13    Juanita      appealed          to    the     court       of   appeals,          which

reversed the circuit court and remanded "for vacation of the

termination order and dismissal of the termination of rights

petition."      St. Croix Cnty. DHHS v. Michael D., No. 2014AP2431,

unpublished slip op., ¶1 (Wis. Ct. App. Jan. 16, 2015).                                     Citing

Steven H., the court of appeals ruled that because the last

order Juanita received did not contain written notice warning

her about termination, St. Croix County failed to establish the

notice element required under Wis. Stat. § 48.415(2)(a)1.                                     St.

Croix Cnty. DHHS v. Michael D., No. 2014AP2431, unpublished slip

op., ¶16 (Wis. Ct. App. Jan. 16, 2015).

                                      II.    ANALYSIS

      ¶14    This      appeal         involves          issues        relating         to     the

involuntary termination of parental rights, under Chapter 48 of

the Wisconsin Statutes, the Children's Code.                               Wisconsin Stat.

§ 48.417 requires the authorized agency to file a petition to

terminate parental rights under certain circumstances including

when:       "[t]he   child      has    been       placed       outside     of    his    or    her
home . . . for       15    of    the    most          recent    22     months"       and     "the

petition     shall   be    filed . . . by               the    last    day      of   the     15th

month . . . the child was placed outside of his or her home."

Wis. Stat. § 48.417(1)(a).               Wisconsin Stat. § 48.415 sets forth

the   grounds    for      termination,            including       "Continuing          need     of

protection or services," which provides in relevant part:

      Grounds   for   involuntary termination   of  parental
      rights. At the fact-finding hearing the court or jury
      shall   determine   whether grounds   exist  for   the
      termination of parental rights. . . . Grounds for

                                                 10
                                                        No. 2014AP2431


    termination of parental rights shall be one of the
    following:

    . . .

    (2)   Continuing need of protection or services.
    Continuing need of protection or services, which shall
    be established by proving any of the following:

    (a) 1. That the child has been adjudged to be a child
    or an unborn child in need of protection or services
    and placed, or continued in a placement, outside his
    or her home pursuant to one or more court orders under
    s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345,
    938.357, 938.363 or 938.365 containing the notice
    required by s. 48.356 (2) or 938.356 (2).

          2.  a. In this subdivision, "reasonable effort"
    means an earnest and conscientious effort to take good
    faith steps to provide the services ordered by the
    court    which    takes    into   consideration    the
    characteristics of the parent or child or of the
    expectant mother or child, the level of cooperation of
    the parent or expectant mother and other relevant
    circumstances of the case.

              b. That the agency responsible for the care
    of the child and the family or of the unborn child and
    expectant mother has made a reasonable effort to
    provide the services ordered by the court.

         3. That the child has been outside the home for a
    cumulative total period of 6 months or longer pursuant
    to such orders not including time spent outside the
    home as an unborn child; and that the parent has
    failed to meet the conditions established for the safe
    return of the child to the home and there is a
    substantial likelihood that the parent will not meet
    these conditions within the 9-month period following
    the fact-finding hearing under s. 48.424.
Wis. Stat. § 48.415(2)(a)1.-3.

                            A.    Notice

    ¶15   The   first   issue    is    whether   the   written   notice
requirements under Wis. Stat. § 48.415(2)(a)1. were satisfied.


                                  11
                                                              No. 2014AP2431



This    issue      requires    statutory    interpretation,    which   is      a

question of law that we review de novo.             Shannon E.T. v. Alicia

M. V.M., 2007 WI 29, ¶31, 299 Wis. 2d 601, 728 N.W.2d 636.                  Our

standards for interpreting statutes are well-known and need not

be repeated here.        See State ex re. Kalal v. Circuit Court for

Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.

       ¶16   The    language   of   Wis.    Stat § 48.415(2)(a)1.   requires

St. Croix County to prove Matthew "has been adjudged to be a

child . . . in need of protection or services and placed, or

continued in a placement, outside his or her home pursuant to

one or more court orders . . . containing the notice required by

s.   48.356(2)."       (Emphasis     added.)     Wisconsin    Stat. § 48.356

requires the circuit court to give oral and written warnings to

parents whose children are placed outside their home "of any

grounds for termination of parental rights under s. 48.415 which

may be applicable."       Section 48.356 provides in full:

       Duty of Court to Warn. (1) Whenever the court orders a
       child to be placed outside his or her home, orders an
       expectant mother of an unborn child to be placed
       outside of her home, or denies a parent visitation
       because the child or unborn child has been adjudged to
       be in need of protection or services under s. 48.345,
       48.347, 48.357, 48.363, or 48.365 and whenever the
       court reviews a permanency plan under s. 48.38(5m),
       the court shall orally inform the parent or parents
       who appear in court or the expectant mother who
       appears in court of any grounds for termination of
       parental   rights  under   s.  48.415   which  may  be
       applicable and of the conditions necessary for the
       child or expectant mother to be returned to the home
       or for the parent to be granted visitation.

       (2) In addition to the notice required under sub. (1),
       any written order which places a child or an expectant

                                       12
                                                                           No. 2014AP2431


       mother outside the home or denies visitation under
       sub. (1) shall notify the parent or parents or
       expectant mother of the information specified under
       sub. (1).
Subsection          (1)    sets        forth   the    required     oral    warnings     and

subsection (2) sets forth the required written warnings.                               Only

subsection (2) is referenced in the TPR based on continuing

CHIPS statute.

       ¶17     We begin by emphasizing that this is a TPR case, not a

CHIPS       case.          Therefore,          the    case   is    governed      by    Wis.

Stat. § 48.415(2)——a TPR statute.                      Section 48.415(2) makes the

written notice in the CHIPS statute, Wis. Stat. § 48.356(2), an

element to prove in a TPR case grounded in continuing CHIPS to

ensure that a parent whose rights are being terminated has——at

least one time——received written notice to that effect.                                 The

language of the TPR statute does not specifically mention the

last       order,    the    first        order   or    use   the   term    every      order.

Rather, it references one or more of the court's written orders

notifying      a     parent       of    applicable     grounds     for    termination    of

parental rights.8            We are not at liberty to disregard the plain


       8
       We are confident that applying the plain language of Wis.
Stat. § 48.415(2) will not result in our circuit courts ignoring
the notice requirement in CHIPS cases under Wis. Stat. § 48.356.
Based on Wis. Stat. § 48.356(2)'s requirement that "any written
order which places a child . . . outside the home . . . shall
notify the parent or parents" of potential TPR grounds and
conditions necessary for a child to be returned to the home,
parental rights and notice requirements will not be diluted by
our decision in this case.




                                                 13
                                                                No. 2014AP2431



words of the statute and we will not attempt to improve the

statute by adding words not chosen by the legislature.                       It is

undisputed that the October 11, 2011 written order contains the

statutorily prescribed termination of parental rights warnings.

Thus,   the      statutory   requirement    was    satisfied    in    this    case

because    one    order——the   October     11,    2011    order——included      the

written TPR notice warning Juanita that her parental rights to

Matthew were in jeopardy.

    ¶18       We could end our analysis here but for the fact that

Steven H. has created a question in the court of appeals and

circuit courts as to whether Steven H. created a bright-line

rule requiring that the last order in a CHIPS case contain the

written notice in order to satisfy Wis. Stat. § 48.415(2)(a)1.

Courts, including the circuit court in the instant case, are

ruling different ways on this question.              As we have seen here,

this circuit court, faced with the factual scenario where a

parent had adequate notice despite the last order not containing

the Wis. Stat. § 48.356(2) warnings, concluded the elements for
termination based on continuing CHIPS were satisfied because one

order had the written warnings attached.                  This circuit court,

faced     with    a   choice   between     the    plain    language    of     Wis.

Stat. § 48.415(2) requiring only one order and two conflicting

sentences in Steven H. about the last order, chose to apply the

plain language of the statute.

    ¶19       The court of appeals, in Lisa K., 237 Wis. 2d 830, ¶13

reached a similar conclusion.            In Lisa K., the last extension
order before the TPR filing did not contain the notice required
                                     14
                                                                          No. 2014AP2431



by Wis. Stat. § 48.356(2), but the previous dispositional orders

contained the requisite notice.                  Lisa K., 237 Wis. 2d 830, ¶2.

After discussing Steven H., the court of appeals rejected Lisa

K.'s argument that Steven H. created a last order, six-months

rule.        Id., ¶¶5-6.        Rather, the court of appeals held that

"notice and adequate information were the dispositive factors in

CHIPS    notices       which   are     followed    by        termination     of   parental

rights proceedings," id., ¶8, and therefore, as long as a parent

"had more than adequate notice of what was expected of her for

the return of her children to her, and was more than adequately

forewarned that her parental rights were in jeopardy . . . it is

not relevant . . . that the final order . . . did not contain"

all    the    notice     requirements       of    § 48.356(2).            Lisa     K.,    237

Wis. 2d 830, ¶10.

       ¶20    Additional       cases    demonstrate          the   factual       variations

that    arise    in     TPR    cases    and      how    the     courts     have    reached

differing decisions based on Steven H.                       See State v. Amelia A.,

Nos. 2015AP630-31, unpublished slip op., ¶¶1-2 (Wis. Ct. App.
June    9,    2015)(affirming        termination        of     parental    rights     where

August 2012 order contained statutory notices but August 2013

order   did     not;    held    that    because        TPR    petition     was    filed   in

November 2013, which was less than six months after August 2013

order, August 2012 order controls decision); Portage Cnty. DHHS

v.    Julie    G.,     No.    2014AP1057,     unpublished          slip    op.,     ¶¶20-21

(acknowledging Steven H. last order, six-months rule); Walworth

Cnty. DHHS v. Jeanna R., No. 2009AP1952, unpublished slip op.,
¶17 (Wis. Ct. App. Nov. 11, 2009)(same);                           Dunn Cnty. DHSS v.
                                            15
                                                                            No. 2014AP2431



Debra O., Nos 2008AP17715077, unpublished slip op., ¶15 (Wis.

Ct. App. Jan. 9, 2009)(citing Steven H. for the proposition “we

recognize       it     may   not    be   necessary        in    every       TPR   case     to

demonstrate that the parent was provided the requisite notice of

conditions in every single order, as long as the parent had

adequate notice given the facts of the case.”);                         Pierce Cnty. v.

Amy F., No. 2004AP1552, unpublished slip op., ¶¶7-10 (Wis. Ct.

App. Aug. 31, 2004)(where parent received required notice with

first CHIPS order, Steven H. does not support her claim that

failure to receive the last order with identical warnings as the

first order requires dismissal);                    see     also     Comment,      Wis JI—

Children        324A    ("The      Committee       believes          that     Wis.     Stat.

§ 48.415(2)       requires       only    that     the   last     order       placing       the

child/children         outside     the   home     contain      the    written     warnings

regarding the termination of parental rights.").

       ¶21   Thus, some courts read Steven H. to say the statutory

notice must be in the last order filed six months before the

TPR.    Others read Steven H. to say as long as the parent has
adequate notice of the conditions required for return of the

child     and    sufficient        warning      that    parental        rights       are   in

jeopardy, the last order need not contain the notices required

in Wis. Stat. § 48.356(2).                As a result, some courts are not

following the plain language of the statute, which requires that

to prove continuing CHIPS as a TPR ground, the State must prove

the parent received "one or more" orders containing the required

notice.


                                             16
                                                                    No. 2014AP2431



       ¶22   Today, we clarify our decision in Steven H.                 The issue

in Steven H. as it relates to the present case was whether Wis.

Stat. §§ 48.415(2) and 48.356(2), in a TPR case based on the

continuing    CHIPS     ground,    "require      that    each   and   every     order

placing a child outside his or her home contain the written

notice prescribed by § 48.356(2) in order for the termination of

parental rights to proceed."              Steven H., 233 Wis. 2d 344, ¶2,

¶16.     The answer to that question was and remains no.                          We

reached that answer by applying the language of both statutes,

cognizant     of   the     legislative         purposes     expressed      in     the

Children's Code.         We noted the legislature used "one or more

court orders" in § 48.415(2) but "any order" in § 48.356(2).                       We

examined in depth the expressed legislative purposes set forth

in the Children's Code in Wis. Stat. § 48.01(1), which directs

"that courts act in the best interests of a child, that courts

avoid impermanence in family relations and that courts eliminate

the need for children to wait unreasonable periods of time for

their   parents    to    correct    the     conditions      that    prevent     their
return to the family."        Steven H., 233 Wis. 2d 344, ¶36.                  Based

on   these considerations, we held that even though Steven H.

received the statutorily prescribed notice in only one written

order (the last order before the TPR petition was filed), this

satisfied    the   statutes       because      the   notice     served   its     dual

purpose of (1) "ensur[ing] that a parent has adequate notice of

the conditions with which the parent must comply for a child to

be returned to the home"; and (2) "forewarn[ing] parents that
their parental rights are in jeopardy."                 Id., ¶37.
                                          17
                                                                 No. 2014AP2431



    ¶23       We   explained    in   Steven    H.   that   interpreting      the

different terminology in Wis. Stat. § 48.415(2) ("one or more

court orders") and Wis. Stat. § 48.356(2)("any order") as the

appellant parent requested would frustrate the important goals

of the Children's Code:

    If the court interprets the statutes as Steven H.
    requests, [the child] would likely remain in the
    impermanence of foster care for many more months until
    the alleged defects in [the deficient orders] could be
    cured.   This interpretation is not required by the
    words    of    Wis.    Stat. § 48.356(2)   and    Wis.
    Stat. § 48.415(2).   Furthermore, this interpretation
    is contrary to the express legislative policy of the
    Children's Code that courts act in the best interests
    of a child, that courts avoid impermanence in family
    relations and that courts eliminate the need for
    children to wait unreasonable periods of time for
    their parents to correct the conditions that prevent
    their return to the family. Wis. Stat. § 48.01(1)(a).
Steven H., 233 Wis. 2d 344, ¶36.               As the circuit court here

observed,      this   case     has   been     pending    since    April    2009.

Dismissing the petition because the last order did not have the

requisite warnings despite compliance with the "one or more"

language of the TPR statute, runs contrary to the purpose of the

Children's Code.       It also would cause us to reject and abandon

the extensive and thoughtful analysis in Steven H. about the

purposes for the Children's Code, which resulted in the Steven

H. holding: "that Wis. Stat. § 48.356(2) and 48.415(2) do not

require that each and every order removing a child from his or

her home contain the written notice prescribed by § 48.356(2) in

order   for    the    termination    of     parental    rights   to   proceed."
Steven H., 233 Wis. 2d 344, ¶3.


                                       18
                                                        No. 2014AP2431



     ¶24   The plain language of § 48.415(2) requires that in a

TPR case where the underlying ground to terminate is based on

continuing   CHIPS,   the   statutory    notice     requirements    are

satisfied when at least one of the CHIPS orders contains the

written notice required under § 48.356(2).         In Steven H., the

last order satisfied this requirement.      In Juanita's case, the

October 11, 2011 order satisfied this requirement.9       Accordingly,

we make clear today that Steven H. did not create a bright-line

"last order, six-months" rule and we withdraw the language in

Steven H. creating that suggestion.     See supra nn.3-4.

     ¶25   Although bright-line rules are helpful in practice, we

cannot change the language of this statute, but must apply the

statutory words chosen by the legislature.        The language of Wis.

Stat. § 48.415(2) is not ambiguous; it is very clear——only one

     9
       We also note that in addition to the one written notice,
Juanita also received three oral warnings from the circuit court
at three separate hearings: October 5, 2011, December 12, 2011,
and September 6, 2012 (which was less than five months before
the first petition to terminate was filed).     Further, Juanita
had just a few months earlier gone through a separate TPR for
her other son, Henry, where her parental rights were terminated;
moreover, Juanita was represented by counsel throughout all
proceedings. The circuit court made a specific factual finding
that despite the non-compliant September 11, 2012 order, Juanita
did in fact receive sufficient notice and understood both the
conditions necessary for return and the consequences for failing
to meet those conditions.   The record demonstrates Juanita had
adequate notice that her parental rights to Matthew were in
jeopardy.

     Further, we are not persuaded by Juanita's contention she
was confused.    The circuit court found that Juanita was not
confused, and we see nothing to suggest that finding was clearly
erroneous.


                                19
                                                                          No. 2014AP2431



or    more    of    the    written    notices      required        under     Wis.       Stat.

§ 48.356(2) must be proven in a TPR case based on continuing

CHIPS.       The legislature does not explain why it used "one or

more" in the TPR statute, but used "any" in the CHIPS statute.

This does not, however, change our analysis.                         The legislature

used "one or more" in § 48.415(2) and that is the language we

must apply in this TPR case.

       ¶26    Our holding does not alter the statutory duty of the

circuit court in CHIPS proceedings under Wis. Stat. § 48.356,

whenever the court orders a child to be placed outside his or

her home, to (1) orally warn parents who appear in court of any

grounds      for    termination       of   parental        rights     which        may    be

applicable and (2) include written notice of such grounds in any

written orders for such out-of-home placement.                       These procedures

effectuate another express legislative purpose set forth in Wis.

Stat. § 48.01(ad) of assuring that parents' "constitutional and

other legal rights are recognized and enforced."                           However, the

legislature        has     not   incorporated         these    mandates          into    the
elements necessary to prove a continuing CHIPS ground in a TPR

action under Wis. Stat. § 48.415(2).                  Accordingly, under a plain

reading      of    the    text   of    § 48.415,       a     TPR    action       based     on

allegations        of    continuing    CHIPS     is    not    precluded       solely      by

noncompliance with § 48.356 in CHIPS proceedings, provided the

elements of continuing CHIPS are proven.

       ¶27    Although Juanita's case does not involve an issue as

to the six-months rule referenced in Steven H., we address it
for   clarity.           Wisconsin    Stat.     § 48.415(2)        does    not    say     the
                                           20
                                                                         No. 2014AP2431



agency seeking a TPR must wait to file until six months after

the last CHIPS dispositional order or extension thereof; rather,

§ 48.415(2)'s only reference to six months comes in Wis. Stat.

§ 48.415(2)(a)3.,          which      provides       that      the     agency      seeking

termination must prove:              "That the child has been outside the

home    for    a    cumulative      total       period   of    6     months   or   longer

pursuant to such orders."                 There is no language stating the "6

months" must be           after    the last CHIPS dispositional order or

extension; rather, the "6 months" is a "cumulative total period"

under the CHIPS orders.              Any other interpretation would require

reading      language      into    the     statute    that     does     not   exist   and

unnecessarily delays permanency.                   Accordingly, we also withdraw

any language in Steven H. suggesting the agency must wait six

months      after   the    last    out-of-home       placement        order   is    issued

before filing a TPR petition.

                      B.    Sufficiency of the Evidence10

       ¶28    The    second       issue    is     whether     there    was    sufficient

evidence to meet the other elements of the continuing CHIPS




       10
       Although sufficiency of the evidence was not raised in
the petition for review, we elect to address it in the interest
of efficiency. See State v. Johnson, 153 Wis. 2d 121, 126, 449
N.W.2d 845 (1990)(When decision on "issue for which the court
accepted the petition for review" results in need to decide a
second issue, we may elect to decide the second issue.); Chevron
Chem. Co. v. Deloitte & Touche, 176 Wis. 2d 935, 945, 501 N.W.2d
15 (1993)("[O]nce a case is before us, we have discretion to
review   any   substantial  and   compelling   issue  the   case
presents.").


                                             21
                                                                No. 2014AP2431



ground for TPR under Wis. Stat. § 48.415(2)(a).                  The elements

are:

       (1) The child has been adjudged CHIPS and placed or
       continued in placement outside his or her home
       pursuant to one or more CHIPS orders containing the
       statutorily prescribed notice; § 48.415(2)(a)1.,

       (2) The responsible agency "made a reasonable effort
       to    provide    the   services  ordered    by   the
       court"; § 48.415(2)(a)2.,

       (3) The child has resided outside the home "for a
       cumulative total period of 6 months or longer" under
       CHIPS order(s); § 48.415(2)(a)3., and

       (4) "[T]he parent has failed to meet the conditions
       established for the safe return of the child to the
       home and there is a substantial likelihood that the
       parent will not meet these conditions within the 9-
       month period following the fact-finding hearing under
       s. 48.424." § 48.415(2)(a)3.
St. Croix County had the burden to prove all four elements by

clear and convincing evidence.

       ¶29   Our   standard     of     review   in   a     challenge    to    the

sufficiency of the evidence is whether there is any credible

evidence to sustain the verdict.             Sheboygan Cnty. DHHS v. Tanya
M.B., 2010 WI 55, ¶49, 325 Wis. 2d 524, 785 N.W.2d 369.                      Under

this standard, we conclude the evidence was sufficient.

       ¶30   First, as already discussed above, there is credible

evidence to show St. Croix County satisfied the first element——

the notice element.        It is undisputed that Matthew was a child

in need of protection or services placed outside his home under

CHIPS   orders     and   one   of    those   orders——the    October    11,    2011
order——contained the written notice prescribed by statute.


                                        22
                                                                    No. 2014AP2431



    ¶31     Second, there is credible evidence to show St. Croix

County    made    reasonable     efforts      to    provide     Juanita   services

ordered by the court.          Wisconsin Stat. § 48.415(2)(a)2. defines

"reasonable effort" as "an earnest and conscientious effort to

take good faith steps to provide the services ordered by the

court which takes into consideration the characteristics of the

parent     or    child . . . ,    the      level     of     cooperation    of     the

parent . . . and other relevant circumstances of the case."                      The

trial court found St. Croix County "did make reasonable efforts

to provide services ordered by the court."                      There is credible

evidence both in the testimony at the fact-finding hearing in

this case and in the CHIPS file to support this element.

    ¶32     Dina Williams testified that she is employed by St.

Croix County as a child protection social worker and worked with

Juanita since Matthew was initially removed from the home when

he was eight days old.         Williams explained the efforts St. Croix

County made to provide services to Juanita:

    We've had a coordinated family services team, a
    community support team.   Juanita's had an individual
    therapist, three different individual therapists at
    minimum.    She's had a mental health worker, a
    psychiatrist that monitors her medications.    We have
    provided respite services, transportation in way of --
    whether it be a gas card or taking her to and from
    places if needed, as well as for Matthew.      There's
    personal care workers for both Juanita and for John.
    Again, the Birth to 3, early Head Start.      He's had
    early childhood.   Now he's in the 4K and preschool
    program.
Williams    testified    that    since       Matthew      was   removed   in    2011,
Juanita     received    twice-a-week          and    then       three-times-a-week


                                        23
                                                                           No. 2014AP2431



supervised        visits     from        St.        Croix     County      employees       who

transported       Matthew    to    Juanita's          home,    offered     parenting      and

safety suggestions during the visits, and provided any other

help Juanita needed.              One of those employees, Ann Larson, a

program aide at St. Croix County Family and Children's Services

Department,       testified       that    she       tried     to   help   Juanita       learn

better parenting skills by making suggestions with respect to

proper food portions, talking to Juanita about safety concerns

such as pill bottles within Matthew's reach, getting a lock on

the gate in the yard, and fixing a large gap in the gate that

Matthew could slip through and escape from the yard.                                   Larson

also testified she was there to provide resources for Juanita,

but Juanita had not asked for any help to improve her parenting

skills.

    ¶33     Dawn     Noll,    another          St.    Croix    County     program       aide,

testified that she worked with Juanita for seven years, offering

parenting     suggestions         and     providing         transportation.             After

Matthew     was    removed     from       Juanita's         home,      Noll    transported
Matthew     back    and     forth       for     weekly      supervised        visits     with

Juanita, and helped Juanita with parenting.                            Juanita testified

she had a personal care worker assigned by the County who came

two hours a day on Monday, Tuesday, Thursday, Friday and every

other Saturday to help Juanita bathe and do household chores.

Williams testified:          "We have exhausted all services that we can

possibly think of or that are available to us or to the family."

Collectively, this testimony is sufficient to demonstrate that


                                               24
                                                               No. 2014AP2431



St. Croix County made reasonable efforts to provide services to

Juanita.

    ¶34    Third, it is not disputed that Matthew was outside his

home for more than six months.         He was removed in July 2011 and

never   returned.    The   TPR    petition    was    filed   in    June   2013.

Matthew was outside the parental home for much longer than the

required "cumulative period of six months."

    ¶35    Fourth,   there       is   credible      evidence      establishing

Juanita's failure to meet the conditions necessary for Matthew's

safe return to Juanita's home.             The circuit court imposed 14

conditions:

    (1)    Juanita   shall   demonstrate   the           ability      to
           supervise Matthew at all times.

    (2)    Juanita shall demonstrate the ability to provide,
           enforce and follow through with age appropriate
           discipline   techniques    with   Matthew,   when
           necessary.

    (3)    Juanita shall continue to learn parenting skills
           with the Parent Aide with St. Croix County Family
           & Children's and demonstrate the ability to use
           these skills.

    (4)    Juanita shall provide a structured routine,
           including but not limited to, meals, naps,
           bedtime, bathing, etc., for Matthew and follow
           through with this routine.

    (5)    Juanita shall keep her home free of all safety
           hazards that may endanger Matthew's health and/or
           safety, out of his reach including, but not
           limited to, all sharp objects, food that has been
           out longer than 2 hours, raw meat, heavy objects
           that are at risk of falling on or near Matthew,
           plastic bags, hangers, electric cords, electric
           outlets, and medications, and will demonstrate
           the ability to follow through.

                                      25
                                               No. 2014AP2431


(6)   Juanita   shall    learn  and  practice   basic
      housekeeping skills and basic home management
      skills which will also help in keeping the home
      free from safety hazards.

(7)   Juanita shall demonstrate the ability to keep
      Matthew safe while playing outside by following
      him where he is playing, holding his hand when
      walking to different areas and staying within 10
      feet or less of him in non-enclosed settings.

(8)   Juanita shall follow through with Birth to 3,
      Early    Head    Start    and    Speech    Therapy
      recommendations when it comes to teaching Matthew
      verbal skills and having Matthew use his words to
      enhance his speech and communications skills.
      Juanita will demonstrate this ability without the
      assistance,   guidance   or   support   of   other
      individuals.

(9)   Juanita    shall   follow   through    with   all
      recommendations made by her physicians when it
      pertains to her physical health and well-being.
      Juanita shall follow through with basic hygiene
      and self-care techniques to improve overall basic
      functioning and health.

(10) Juanita shall sign any and all releases deemed
     necessary and appropriate by the Department.
     This includes releases to be signed for the
     social Worker to discuss Juanita's health and
     well-being   with  her   various   health   care
     providers.   These will be signed at the time
     requested. If a request is deemed by Anita to be
     unreasonable the court shall be notified for a
     review hearing to be scheduled as soon as
     possible.

(11) Juanita shall not have any other individuals
     living with her (aside from her eldest son, John
     or her sister, Julie) without permission of the
     social worker and GAL.

(12) Warnings for Termination of Parental Rights shall
     be administered to Juanita.




                           26
                                                                      No. 2014AP2431


       (13) Juanita shall meet with the assigned social
            worker as deemed necessary and appropriate and
            will also acknowledge unannounced home visits.

       (14) In all other respects, the current CHIPS Court
            Order recommendations are still in effect and
            will continue to be followed.
       ¶36    Although we agree with Juanita that she was able to

meet   some    of    these    conditions,       the   record    contains     credible

evidence      establishing      that   she      failed   to    meet   all   of    them.

Williams testified Juanita attempted to meet the conditions for

return,      but    "she's    not   able   to    complete      all    of   them   on   a

consistent basis."           Williams explained:

          Juanita "has not demonstrated the ability to
           supervise   Matthew   at   all  times   without   the
           assistance of others.     She has not been able to
           demonstrate the ability to provide, enforce, and
           follow   through   with  age-appropriate   discipline
           techniques with--at all times on her own without
           assistance.    She does at times, but not always."
           Juanita's focus is frequently on arguing with her
           older son and "Matthew is often just lost in the
           shuffle" leaving Matthew unsupervised.

          Juanita's parenting skills have improved, but she
           does not have "the ability to use these skills" "on
           a consistent and ongoing basis."

          Juanita typically does not have a structured plan
           for the visits.

          Juanita's ability to make her home safe has
           improved, "but there continues to be incidents
           where, again, medications have been left out. This
           is something I have repeatedly talked to Juanita
           about." When playing outside, "the gate [is] not
           properly latched, if latched at all."

          With regard to the condition to keep a clean home,
           Juanita cannot do this on a consistent basis. "She
           needs reminders" "continuous reminders on [how] to
           keep the house clean."     The floor was "filthy,"
                                           27
                                                               No. 2014AP2431


        there were dirty dishes "from last night's meal
        still out on the counter, food, dishes in the living
        room," dirty laundry, and the bathroom was so dirty
        Matthew did not want to use it.

       Juanita is "often sitting when [Matthew's] off
        playing" and not within the ten-feet required by the
        conditions to keep him safe.

       Juanita keeps up with the early education and speech
        requirements but only because she is reminded to do
        so. Once reminded, Juanita will "make the effort to
        do it for a short period of time, but it doesn't
        continue as an ongoing basis."

       Juanita has rescinded all of her medical releases
        and will not allow any contact with her personal
        physicians or her "protective payee in regards to
        her financial situation and whether or not she is
        able   to  financially  support  herself and  her
        children."
Williams'     testimony   provides    credible      evidence   to    establish

Juanita's failure to meet the conditions.

    ¶37     There   was   also     credible    evidence   demonstrating         a

substantial likelihood that Juanita would not meet the imposed

conditions    within   the    nine-month   period     following      the   fact-

finding hearing.       Williams testified that Juanita would not be

able to comply with the conditions for return within the nine

months following the hearing and that:              "We have exhausted all

services that we can possibly think of or that are available to

us or to the family."          St. Croix County Department of Social

Services worked with Juanita since Matthew was eight days old.

It provided her with significant support for years, yet Juanita

could   not    consistently      demonstrate   an    ability    to    properly

supervise Matthew or maintain a safe home for Matthew.                Williams
testified that Juanita would be able to exhibit the parenting

                                      28
                                                                      No. 2014AP2431



skills she had been taught for at most one month "before she

goes back to the old behaviors."                There was nothing to show that

Juanita could accomplish in another nine months what she was

unable to do in the prior four and a half years.                   Thus, credible

evidence supports this element.

                               III.     CONCLUSION

      ¶38     We hold that the notice Juanita received satisfied the

statutory notice element of a TPR action grounded in continuing

CHIPS set forth in Wis. Stat. § 48.415(2).                   The notice required

under Wis. Stat. § 48.356(2)(a)1. was satisfied with the written

October 11, 2011 order.             In a TPR case based on the continuing

CHIPS ground, Wisconsin Stat. § 48.415(2) does not require proof

that notice was given in every CHIPS order removing a child from

the home or extension thereof; it also does not require proof

that notice was in the last CHIPS order.                    Rather, it requires

proof that one or more of the CHIPS orders removing a child from

the   home,    or    extension      thereof,     contain    the   written      notice

required under § 48.356(2).
      ¶39     We further hold that Steven H. did not establish an

unequivocal "last order, plus six-months rule."                   Wisconsin Stat.

§ 48.415(2)     does    not    use    the   term    last    order;     rather,    the

legislature chose to use the phrase "one or more."                     Accordingly,

if "one or more" of the CHIPS orders in a TPR case contains the

statutorily prescribed written notice, regardless of whether it

was   the   first,     last,   or    any    order   in     between,     such   notice

satisfies the phrase "one or more."                 Likewise, the statutes do
not require that six months must pass after the last CHIPS order
                                           29
                                                                            No. 2014AP2431



before     a   TPR    petition       can   be     filed.         Rather,    the     relevant

statute requires proof that a child was "outside the home for a

cumulative total period of 6 months or longer."                                  Wis. Stat.

§ 48.415(2)(a)3.            We do not overrule Steven H.                 It remains good

law     except      that     we   withdraw        our     conflicting           sentence    in

paragraph 3 and clarify the last sentence in paragraph 31.                                 See

supra ¶2, ¶4 nn.3-4, & ¶¶18-25, ¶27.

      ¶40      We    also     hold    that       the    record      contains        credible

evidence sufficient to establish continuing CHIPS as a ground

for terminating Juanita's parental rights.                         The record contains

credible       evidence      showing:        Matthew       was    adjudged        CHIPS    and

placed outside Juanita's home pursuant to one or more CHIPS

orders containing the statutorily prescribed written notice; St.

Croix    County      made    reasonable         efforts    to     provide       services    to

Juanita; Matthew resided outside of Juanita's home for longer

than six months; Juanita failed to meet all of the conditions

required for his return; and there was a substantial likelihood

that Juanita would not meet those conditions within the nine
months     following        the   fact-finding          hearing.         Accordingly,       we

reverse the court of appeals' decision and affirm the circuit

court's order terminating Juanita's parental rights to Matthew.

      By    the     Court.—The       decision      of    the     court     of    appeals    is

reversed.




                                             30
                                                                      No.       2014AP2431.pdr


      ¶41    PATIENCE        DRAKE     ROGGENSACK,       C.J.        (concurring).              I

fully     join     the      majority    opinion.         However,           I     write       in

concurrence       to     address     what   appears    to    be      Justice           Shirley

Abrahamson's practice of lending the prestige of her judicial

office to further private interests.

      ¶42    Justice Abrahamson says she writes to "compare Justice

Rebecca     G.   Bradley's       public     approach   to    the      role        of    a    new

justice in deciding cases argued and pending on her appointment

and the approach taken in the past in this court and in the

United      States     Supreme      Court    regarding      the      role        of    a      new

justice."1       However, an examination of what she says in her three

separate writings, when combined with what she does not tell

readers     of    those     separate      writings,    evidences            that       she    is

engaged in a different pursuit.

      ¶43    Justice         Abrahamson's        writings         repeatedly                 omit

important facts well known to her; they are attached to court

decisions in which her assaults on Justice Rebecca Bradley are

not     relevant       to   legal    issues     presented       to    the        court       for
decision; and this is the third opinion since December 18, 2015,

in which she has attacked Justice Rebecca Bradley by implying

that her decisions about when to participate in cases pending

before the court are improper.

      ¶44    Therefore, as Chief Justice of the Wisconsin Supreme

Court, I write to provide transparency by setting out important




      1
          Justice Abrahamson's dissent, ¶136.


                                            1
                                                               No.    2014AP2431.pdr


facts known to Justice Abrahamson, which she has chosen to omit

from her writings in three cases.

     ¶45    A   brief    narration     of    relevant       historic     facts    is

necessary to understand my concerns.             On September 17, 2015 and

September 18, 2015, Justice N. Patrick Crooks did not attend

oral argument in six cases that were argued on those two days.

He watched oral argument on WisconsinEye and then participated

in our decision conferences by telephone.               As arguments began on

September 17    and     again   on   September 18,      I   told     counsel     that

Justice Crooks would be absent from oral argument, but would

participate in the decision conference by phone.

     ¶46    The court reached tentative decisions in five of the

six cases argued.       Justice Crooks would have participated in the

released opinions of all cases that were tentatively decided if

his death had not intervened.2

     ¶47    On September 17, we heard oral argument in St. Croix

County, the case now before us.             Justice Abrahamson asserts that

Justice Rebecca Bradley is "[t]aking a different and contrasting
approach to this prior precedent."3            However, Justice Abrahamson
     2
       Justice Abrahamson asserts, "There is precedent in this
court for a member of the court to do as Justice Crooks
explained he would do."     Justice Abrahamson's dissent, ¶141
n.53.

     If there is "precedent" that was created by other justices'
absences from oral argument and subsequent participations in the
decision conference by phone as Justice Abrahamson asserts, it
is not noted in our opinions.        This absence is reasonable
because the manner in which a justice participates has nothing
to do with issues presented to the court for review.
     3
         Justice Abrahamson's dissent, ¶147.


                                        2
                                                                   No.    2014AP2431.pdr


knows that Justice Crooks participated in St. Croix County in

very much the same manner as Justice Rebecca Bradley has:                           both

listened to oral argument on WisconsinEye and both participated

in the decision conference, Justice Crooks by phone and Justice

Rebecca Bradley in person when the court held a second decision

conference.          Furthermore, Justice Rebecca Bradley's decision to

participate in St. Croix County is not a legal issue presented

to the court for resolution in St. Croix County.

       ¶48     Twice     before,     once   in    a    dissent    and     once     in     a

concurrence, Justice Abrahamson omitted important facts known to

her and in so doing, through the facts that she did relate, she

drew into question the propriety of Justice Rebecca Bradley's

decisions about whether to participate in pending cases.                                The

repetitive nature of her omissions of known facts heightens my

concern.

       ¶49     For example, in her dissent in State v. Matalonis,

2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567, Justice Abrahamson

said,       "the     court   heard   oral   argument       in    the     instant    case
[Matalonis] and eight other cases.                    Justice N. Patrick Crooks

participated in these nine cases."4                   Justice Abrahamson asserted

that       Justice    Rebecca   Bradley's       "participation     in     those    cases

without a reargument appear[s] to be internally inconsistent and

inconsistent with the court's prior practice."5


       4
       State v. Matalonis, 2016 WI 7, ¶73, 366 Wis. 2d 443, 875
N.W.2d 567 (Abrahamson, J., dissenting)
       5
           Id., ¶82.


                                            3
                                                               No.   2014AP2431.pdr


      ¶50   When    she   wrote   her   dissent       in    Matalonis    implying

impropriety in Justice Rebecca Bradley's participation because

the court did not hold another oral argument, Justice Abrahamson

knew that Justice Crooks did not participate in oral argument in

Matalonis because she knew that he did not attend oral arguments

on   September 18.        Nevertheless,       Justice      Abrahamson    did    not

disclose to readers of Matalonis that Justice Crooks watched

oral argument on WisconsinEye, just as Justice Rebecca Bradley

has, and that his involvement in the decision conference was by

telephone, while Justice Rebecca Bradley personally participated

in a subsequent decision conference.                  Justice Abrahamson also

did not disclose to readers of Matalonis that the court has no

prior practice to follow when a justice joins the court mid-

term.6      And    finally,   Justice       Rebecca    Bradley's     decision    to

participate in Matalonis is not relevant to deciding the legal

issues presented by that case.

      ¶51   Justice Abrahamson's omissions have caused at least

one reader to question Justice Rebecca Bradley's decision to




      6
       The last death that occurred during a court term was that
of Justice Horace Wilkie, who died May 23, 1976.        Although
Justice Abrahamson was appointed to replace him, she did not
join the court mid-term as Justice Rebecca Bradley has. Rather,
she began September 7, 1976, at the beginning of the court's
term.


                                        4
                                                                                No.    2014AP2431.pdr


participate             in     Matalonis,       claiming          that     her        participation

violated Matalonis's rights of due process and equal protection.7

       ¶52        The    first      time      Justice      Abrahamson          made    allegations

about       Justice          Rebecca       Bradley's        participation             was     in   her

concurrence to New Richmond News v. City of New Richmond, 2015

WI    106,    365        Wis. 2d       610,    875       N.W.2d    107,    which        was    argued

September 18.                There, she wrote, "Prior to September 21, 2015

[the       date    of        Justice    Crooks'          death],   the     court        heard      oral

argument          in         nine   cases.               Justice      N.       Patrick         Crooks

participated."8               Once again, when she issued her concurrence in

New Richmond News, Justice Abrahamson knew that Justice Crooks

did not participate in oral arguments for all of those cases

because six cases were argued on September 17 and September 18

when Justice Crooks was absent from oral argument.                                          She also

knew that the court did not reach a tentative decision in New

Richmond News at the decision conference on September 18 because

she refused to vote, held the case and voted for the first time

after Justice Crooks' death.
       ¶53        Omitting important facts known to her at the time of

her     writings         permits        Justice          Abrahamson       to     imply      that    by

deciding to participate in St. Croix County and Matalonis, and

       7
       The author of the motion for reconsideration states that
"Justice Shirley S. Abrahamson provides much of the background
of facts and circumstances pertinent to Matalonis' motion for
reconsideration in her dissenting opinion, State v. Matalonis,
2016 WI 17, ¶¶68-84." Mot. for Recons. 2 n.2
       8
       New Richmond News v. City of New Richmond, 2015 WI 106,
¶10, 365 Wis. 2d 610, 875 N.W.2d 107          (Abrahamson, J.,
concurring).


                                                     5
                                                                    No.    2014AP2431.pdr


deciding      not   to    participate       in    New    Richmond       News,    Justice

Rebecca Bradley violated established rules of this court.

       ¶54    Nothing could be further from the truth.                      As Justice

Abrahamson well knows, this court has no procedure that directs

how the court and the justices are to proceed when a justice

leaves mid-term and another justice takes his or her place.

Limited guidance is found in our Internal Operating Procedures

which provide:

       A justice may recuse himself or herself under any
       circumstances sufficient to require such action.  The
       grounds for disqualification of a justice are set
       forth in Wis. Stat. § 757.19.      The decision of a
       justice to recuse or disqualify himself or herself is
       that of the justice alone.
IOP, II.L.1.          Although the IOP is not directly on point, it

supports      Justice     Rebecca     Bradley's       decisions.           Furthermore,

Justice Abrahamson is well aware that Justice Rebecca Bradley

did extensive research in advance of deciding how to proceed

because Justice Rebecca Bradley shared her research with the

court.

       ¶55    And   finally,      Justice       Abrahamson    is    well    aware    that

this   court    was      presented    with      her   version      of   United    States

Supreme Court procedures that she asserts are employed when a

justice leaves the United States Supreme Court mid-term.                             She

also knows that we did not adopt those procedures for use by

Wisconsin      Supreme     Court     justices.          All   of   those     facts   are

missing      from   her   three    writings       that    attack    Justice      Rebecca

Bradley.




                                            6
                                                                            No.    2014AP2431.pdr


       ¶56    Because Justice Abrahamson has omitted important facts

from her separate writings that were well known to her when she

personally        attacked      Justice     Rebecca          Bradley    and        because    her

attacks immediately preceded the election of a justice to our

court, it appears that Justice Abrahamson is using the prestige

of her judicial office to further private interests.

       ¶57    While Justice Abrahamson is free to speak in support

of her political views in many other forums, as Justice Ann

Walsh     Bradley        did     in   her        public       endorsement           of    Joanne

Kloppenburg, Justice Rebecca Bradley's opponent in the April 5,

2016    election          for    supreme         court        justice,        justices        are

constrained        from    doing      so    in       court    opinions,           which   should

address      legal      issues    presented           to   the      court     for     decision.

Accordingly, I respectfully concur in the majority opinion.

       ¶58    I    am   authorized         to    state       that    Justice        REBECCA    G.

BRADLEY joins this concurrence.




                                                 7
                                                              No.   2014AP2431.dtp


    ¶59   DAVID     T.   PROSSER,       J.   (concurring).           This    case

presents a classic example of the challenges facing appellate

courts.   It compels us to resolve a question arising out of the

convergence of ambiguous statutory language, well-reasoned but

conflicting precedent, and a heart-wrenching factual situation.

    ¶60   Wisconsin      Stat.    § 48.415   is    the      Wisconsin    statute

listing   grounds     for   the     termination        of   parental     rights.

Subsection   (2)    discusses     the   ground    of    "Continuing     Need   of

Protection or Services" and sets out what a county must prove to

establish this ground.

    ¶61   Subsection (2)(a)1. lists the first item of proof:

         (a)1.     That the child has been adjudged to be
    a child . . . in need of protection or services and
    placed, or continued in a placement, outside his or
    her home pursuant to one or more court orders under
    s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345,
    938.357, 938.363 or 938.365 containing the notice
    required by s. 48.356(2) or 938.356(2).
    ¶62   To understand what the first item of proof requires,

we must examine and interpret Wis. Stat. § 48.356, especially

subsection (2).     The statute reads:

          48.356 Duty of court to warn.

         (1) Whenever the court orders a child to be
    placed outside his or her home, orders an expectant
    mother of an unborn child to be placed outside of her
    home, or denies a parent visitation because the child
    or unborn child has been adjudged to be in need of
    protection or services under s. 48.345, 48.347,
    48.357, 48.363, or 48.365 and whenever the court
    reviews a permanency plan under s. 48.38(5m), the
    court shall orally inform the parent or parents who
    appear in court or the expectant mother who appears in
    court of any grounds for termination of parental
    rights under s. 48.415 which may be applicable and of
    the conditions necessary for the child or expectant

                                        1
                                                                        No.   2014AP2431.dtp

       mother to be returned to the home or for the parent to
       be granted visitation.

            (2) In addition to the notice required under
       sub. (1), any written order which places a child or an
       expectant mother outside the home or denies visitation
       under sub. (1) shall notify the parent or parents or
       expectant mother of the information specified under
       sub. (1).
       ¶63     As    the   majority   opinion         explains,      after      St.       Croix

County presented its case at a fact-finding hearing, Juanita's

counsel moved the circuit court to dismiss the TPR petition on

grounds that the county had failed to prove elements related to
the statutory sections quoted above.                       Majority op, ¶10.                 In

short, Juanita claimed that the county had not provided adequate

written notice under the statutes.

       ¶64     One of the ablest circuit judges in Wisconsin, Edward

F.     Vlack,        concluded      that    there         had     been        "substantial

compliance."

       ¶65     Judge Vlack's terminology was ironic because in 1988

the    court    of    appeals     held:    "If    a     statute    is    mandatory,         its

observance is usually said to be imperative.                         We conclude that

substantial          compliance      with        sec.     48.356(2),          Stats.,        is

insufficient."         D.F.R. v. Juneau Cty. DSS, 147 Wis. 2d 486, 493,
433 N.W.2d 609 (Ct. App. 1988) (citation omitted).                            The court of

appeals then ruled: "Because the department did not establish

that    D.F.R.'s       children      had    been        outside     her       home    for     a

cumulative      total      period    of    one    year     or     longer      pursuant      to

dispositional         orders     containing       the    notice     required         by   sec.

48.356(2), Stats., the trial court erred in terminating D.F.R.'s
parental rights."          Id. at 499.


                                            2
                                                               No.   2014AP2431.dtp


    ¶66      The result in D.F.R. introduced grave uncertainty and

hardship into the lives of two young children.

    ¶67      More than a decade later, this court reviewed a case

in which the circuit court terminated a father's rights to his

daughter.         The   court   of   appeals     reversed    the   circuit   court

because some orders removing the daughter from her home did not

include the written notice prescribed by Wis. Stat. § 48.356(2)

(1997-98).

    ¶68      The court of appeals reluctantly followed the D.F.R.

case:

    Despite our firm belief that substantial compliance
    should apply in this case, we are compelled by D.F.R.
    v. Juneau County Department of Social Services, 147
    Wis. 2d 486, 433 N.W.2d 609 (Ct. App. 1988), to
    reverse the termination order.

             . . . .

         This is an extremely unfortunate case.   However,
    the result is compelled by the statutes and D.F.R.
    The author of this opinion has believed D.F.R. to be
    incorrect from the beginning.     This court believed
    when D.F.R. was decided, and still believes now, that
    substantial compliance is a viable and reasonable tool
    with which to reach the correct result in a case like
    this one. When a parent receives actual notice, like
    the one Steven orally obtained from the trial court at
    the March 27, 1996 hearing, the hypertechnical notice
    requirements of the statute should not have to be
    followed to the letter.
Waukesha Cty. v. Steven H., No. 1998AP3033, unpublished slip op.

at 2, 7 (Wis. Ct. App. Feb. 24, 1999).

    ¶69      On    review,      a    unanimous     supreme     court    reversed,

concluding that:

    Wis. Stat. §§ 48.356(2) and 48.415(2) do not require
    that each and every order removing a child from his or
    her home contain the written notice prescribed by
                               3
                                                                         No.   2014AP2431.dtp

       § 48.356(2) in order for the termination of parental
       rights to proceed. . . .      This interpretation of
       §§ 48.356(2) and 48.415(2) ensures that a parent
       receives the written notice required by § 48.356(2) in
       a timely manner and does not vitiate a termination of
       parental rights proceeding when one or more previous
       orders fails to contain the statutorily prescribed
       written notice.
Waukesha Cty. v. Steven H., 2000 WI 28, ¶3, 233 Wis. 2d 344, 607

N.W.2d 607.

       ¶70    There    were     no    amendments        to   the    relevant         statutes

between       1988      and       2000       that      necessitated            an         altered

interpretation        of    the      two    statutes.        What    changed             was   the

court's      perception       that    unbending        adherence     to    the       statutory

text   was    producing        unconscionable          results     for    children,            even

though    the       affected      parents     had      received     plenty          of    actual

notice, though perhaps not the repeated written notice implied

by Wis. Stat. § 48.356(2).

       ¶71    This     court's       Steven       H.    opinion     was        a    brilliant

exercise of judicial craftsmanship.                     It discerned the ambiguity

in the wording of Wis. Stat. § 48.356 in relation to Wis. Stat.

§ 48.415(2).         It distinguished the D.F.R. case.                    It seized on a

fact——that the "last order entered a year before the start of
the proceeding to involuntarily terminate parental rights did

contain       the     written        notice       required,"        Steven           H.,        233

Wis. 2d 344, ¶23——to create a rule.                     It addressed earnestly the

critical      importance        of     protecting        parents     from          the     state

"precipitously         or   capriciously          terminating       parental             rights."

Id., ¶5.       It admonished judges that "the better practice is to

include the written notice" in                    § 48.356(2) in all orders to
which the statute applies.                 Id., ¶3.

                                              4
                                                              No.    2014AP2431.dtp


    ¶72    The      plain   truth,     however,   is   that   the    opinion    in

Steven H. deliberately chose not to follow the strict terms of

the statute.     Thus, it opened the door for the majority opinion

in this case.

    ¶73    The entire court approved the Steven H. opinion in

2000.   The entire court should approve the majority opinion now.

Footnote   9   of    the    majority    opinion   succinctly        provides   the

foundation for the court's inevitable decision and illustrates

why the facts make the law.

    ¶74    For the foregoing reasons, I respectfully concur.




                                         5
                                                                       No.      2014AP2431.rgb


       ¶75     REBECCA G. BRADLEY, J.               (concurring).          For the third

time       this     term,    Justice      Shirley        Abrahamson       has    written       a

separate           opinion    discussing          my       participation             or     non-

participation in cases pending in this court before I joined the

court.1       See New Richmond News v. City of New Richmond, 2015 WI

106, 365 Wis. 2d 610, 875 N.W.2d 107; and State v. Matalonis,

2016 WI 7, ¶79, 366 Wis. 2d 443, 875 N.W.2d 567.                                The dissent

authors criticize my decision to participate in three cases:

this       case,    Matalonis,     and    State     v.    Parisi,     2016      WI    10,    367

Wis. 2d 1, 875 N.W.2d 619;2 but not other pending cases including

New Richmond News.            The dissent further suggests this court had

an established procedure to follow when a new justice joins the

court mid-term and that the three cases                           in which I chose to

participate         cannot    be    distinguished         from     other     cases.         The

dissent       is    wrong    on    both   points       and    I   write    separately         to

explain my reasons for participating in certain cases and not

participating in others.

       ¶76     No    Wisconsin      statute,      rule       of   appellate       procedure,
internal       operating      procedure      ("IOP")         or   supreme       court       rule

specifically addresses the participation of a newly-appointed

justice in cases that were argued but not decided before the new


       1
       For the first time, Justice Ann Walsh Bradley joins the
dissent.
       2
       See State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d
619.    In Parisi, Justice Abrahamson did not write her own
dissent and instead joined the dissent of Justice Ann Walsh
Bradley, who wrote about the merits of that case rather than my
participation.


                                             1
                                                              No.    2014AP2431.rgb


justice was sworn in.           The dissent has not cited any Wisconsin

authority because none exists.          This is the first time a newly-

appointed justice joined the court mid-term due to the death of

a supreme court justice.3         In four cases that were argued but not

decided before I was sworn in, this court was deadlocked on

whether to affirm or reverse the court of appeals:                    this case,

New Richmond News, Matalonis, and Parisi.                   Significantly, in

those cases where the court was deadlocked at the time I joined

the court, no orders had been issued affirming the court of

appeals.        After   substantial     research,    I     learned    there    was

precedent on how to proceed in New Richmond News, which was the

only one of the deadlocked cases that had come to this court on

bypass   from    the    court   of   appeals.      Under    State     v.   Richard

Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995),

when a case is before this court on a petition to bypass or a

certification, and a tie vote results, the case is remanded to

the court of appeals for decision.              That precedent was followed

when this court vacated           the bypass petition in            New Richmond
News, under Richard Knutson, Inc., and remanded the case to the

court of appeals.         This procedure recognizes that this court


     3
       There is one other time in history of which we are aware
where a supreme court justice died before the court's term
concluded. Chief Justice Horace W. Wilkie died on May 23, 1976.
After his death, orders were issued on June 30, 1976 affirming
the county courts in cases where the supreme court was equally
divided. See Punches v. Schmidt, 73 Wis. 2d 206, 243 N.W.2d 518
(1976); State v. Kline, 73 Wis. 2d 337, 243 N.W.2d 519 (1976).
Justice Abrahamson was appointed to fill the vacancy created by
Chief Justice Wilkie's death, but she was not sworn in until
September 1976 when this court's new term began.


                                        2
                                                              No.    2014AP2431.rgb


could benefit from a decision rendered by the court of appeals

and then revisit the issues if one of the parties petitions for

supreme court review.

      ¶77   There is not, however, any Wisconsin authority with

respect to new justices handling pending "deadlocked" cases that

have come to this court on petitions granted for review.                      If I

declined to participate in the three "deadlocked" cases, the

court of appeals' decisions would stand.                This court, however,

decided many months ago (April 2015 for this case and Matalonis,

and June 2015 for Parisi) that the court of appeals' decisions

in these three cases merited this court's review.                    Hundreds of

petitions for review are filed with this court every year and

this court accepts only a limited number of cases.                        When this

court   accepts   a   case   for    review,   not      only   do    the     parties

undertake significant time and expense to litigate the matter

before the supreme court, but the people of the State deserve

the   issues   presented     to    be   decided   by    the   supreme        court.

Although our court of appeals judges do an excellent job, they
serve a different role than the supreme court.                      The court of

appeals'    primary   function     is   error-correcting.           See    Cook   v.

Cook, 208 Wis. 2d 166, 188, 560 N.W.2d 246 (1997).                   The supreme

court, on the other hand, serves the primary function of "law

defining and law development."          Id.   As a member of this court,

it is my duty to participate in those cases so that the people

of Wisconsin receive a decision from the supreme court.                     In each

of the deadlocked cases, nothing had been decided and no orders
or opinions had been issued at the time I joined the court.                       It

                                        3
                                                                      No.   2014AP2431.rgb


is also important to note that the initial vote on these three

cases after the passing of Justice Crooks was 3-3.                                Although

this case and Parisi ultimately were released as 5-2 decisions,

this could not have impacted my analysis regarding these cases

in which I would participate because at the time I chose to

participate,      these    cases       were       deadlocked    3-3.        The    dissent

misleads the public in paragraph 145 by omitting this important

fact when it references the 5-2 final result in this case and

Parisi.     In doing so, the dissent implies this case and Parisi

were treated differently.               That is not true.             My participation

analysis was consistent with respect to each of these cases.

      ¶78    In each deadlocked case, I watched oral arguments on

WisconsinEye4 and would have requested re-argument if important

questions had been left unanswered.                     We are fortunate to have

every oral argument video-recorded and available for viewing on

WisconsinEye.       These recordings are of high quality, allowing

viewers     to    see     the        argument      as   if     they    were       present.

WisconsinEye has multiple video-cameras, which rotate between
the   lawyers    arguing        at    the   podium      and    the    justices     asking

questions.       All demeanors, hand gestures, and other non-verbal

forms of communication are contained in the video-recordings.

These video-recordings have allowed past justices, who could not

attend oral argument in person, to do the same thing I did——

watch the oral argument on WisconsinEye.



      4
          WisconsinEye, http://www.wiseye.org (last visited Feb. 23,
2016).


                                              4
                                                                              No.    2014AP2431.rgb


       ¶79     Following       my     review          of    each    deadlocked            case,     I

participated in conferences with my fellow justices for further

discussion of and to reach a majority decision in each case,

pursuant       to     IOP         II.E,     governing           post-argument              decision

conference.         This reasonable procedure provided the best option

allowing this court to timely decide cases upon which it agreed

the    supreme      court     needed       to   give        guidance.             The    people    of

Wisconsin deserve timely decisions from this court.                                     If the oral

arguments had not been video-recorded and available for viewing,

we    would    have    been       forced     to       subject      these      parties       to    the

additional cost and inconvenience of re-arguing, for the sake of

one new justice, the exact same arguments that had already been

presented      a    short     time        earlier      to    the    other         six     justices.

Justice       Abrahamson's         proposed       procedure         requiring            reargument

would have delayed justice, added unnecessary expense, and may

have even delayed these cases into the 2016-17 term.

       ¶80     Similar       to     Wisconsin,          there      is        no     federal      rule

specifically addressing what should occur when a new justice
joins the court after the term has commenced, with respect to

pending cases on which the court has reached an impasse and no

decision      has     been    issued.           While       there       is    a     federal      rule

addressing petitions for rehearing, such petitions are similar

to Wisconsin's reconsideration motions and, like the Wisconsin

rule, the federal rule applies only to judgments or decisions of

the court.          This is made clear in Stephen M. Shapiro, et al.,

Supreme Court Practice, 838 (10th ed. 2013), which states that
"rehearing petitions have been granted in the past where the

                                                  5
                                                                           No.    2014AP2431.rgb


prior decision              was by an equally divided Court."                          (Emphasis

added.)      At the risk of being unduly repetitive but in order to

underscore            the   significance         of    this   fact,    no        judgments      or

decisions had been issued in the deadlocked cases at the time I

joined the court.

       ¶81    My participation in the deadlocked cases is supported

by the past practices of the United States Supreme Court under

similar circumstances.                 Following the death of Chief Justice

William      H.       Rehnquist      and    the       appointment     of    Justice         Samuel

Anthony Alito, Jr., that Court revisited three cases in which

the Court was presumed to be deadlocked; Justice Alito joined

the    5-4   majority          in    each    case      following      re-argument.             See

Shapiro, supra, at 838.

       ¶82    Even though Justice Abrahamson explained her concerns

in her concurrence in New Richmond News, she elected to write

separately a second time in Matalonis, criticizing my decision

to participate in Matalonis.                     Although I could have responded to

her dissent in Matalonis, I chose not to because the dissent was
unrelated to the merits of the case.                        I believed Matalonis would

be    Justice         Abrahamson's        last    separate    writing       criticizing         my

participation           and   I     chose   not       to   write    separately         to    avoid

further delaying the release of the Matalonis opinion.

       ¶83    In the dissent here, Justice Abrahamson goes beyond

her writings in New Richmond News and Matalonis by including                                     a

reference to the allegations of Matalonis's lawyer——allegations

made    in        a     motion      for     reconsideration          based        on    Justice
Abrahamson's criticism of my participation.                          By memorializing in

                                                  6
                                                                          No.    2014AP2431.rgb


her dissent here the adversarial allegations made by an attorney

not even involved in the case at hand, Justice Abrahamson has

revealed her true motivation behind her critical concurrence and

dissents.     Justice Abrahamson's separate writings were not about

documenting for future courts how to properly handle pending

cases when a justice dies mid-term and a new justice joins the

court.       Including         the        non-prevailing          lawyer's           adversarial

allegation    from       Matalonis——an           entirely      separate         case——in       the

dissent in this TPR case is entirely inappropriate and serves

only one purpose:             to give others material——within a published

Wisconsin     Supreme         Court       decision,       no     less——to        attack        and

criticize me.          The Code of Judicial Conduct requires that:                              "A

judge     shall        dispose       of     all        judicial        matters         promptly,

efficiently    and      fairly."           SCR       60.04(1)(h).         Part       II   of   the

dissent     here       violates       this        rule    and      is     cumulative           and

unnecessary       as    similar       writings         already     exist        in    both     New

Richmond News and Matalonis.

    ¶84     Justice          Abrahamson         and    Justice      Ann      Walsh        Bradley
suggest in this dissent that I am sharing "for the very first

time" my explanation on my participation.                           See dissent, ¶135.

Although this is the first time I have shared my reasoning for

participation in a written opinion, Justices Abrahamson and Ann

Walsh Bradley have known my reasons since October 2015 when I

provided    them       (and    the    entire          court)    with      my     reasons       for

participating based on the substantial research I conducted.                                    I

did not feel it necessary or appropriate to delay release of
these    opinions       to    include       a    discussion       of    my      participation

                                                 7
                                                                       No.   2014AP2431.rgb


decision.         Justice Abrahamson now joined by Justice Ann Walsh

Bradley did not agree with the reasonable, well-researched, and

supported decision I made.                    Instead of accepting it, Justice

Abrahamson      chose       to   repeatedly        criticize    me:      first       in   New

Richmond News by arguing I should have participated and then in

Matalonis because I did participate.                     In New Richmond News, she

complained      that     remanding       to    the   court     of    appeals     delays     a

decision, yet in Matalonis and St. Croix, (joined by Justice Ann

Walsh Bradley in            St. Croix), advocates for a procedure that

delays     both    decisions.           Justice      Abrahamson       also     engaged    in

multiple revisions of the dissent here causing substantial delay

in   the    release         of   this    opinion.         Her       decision    to    write

separately in these cases has delayed justice, and with respect

to   this    case      in    particular,         where   efficient       resolution       is

paramount because this case involves a child's well-being, this

is particularly troubling.                Part II of the dissent contributes

nothing to any legitimate function of the court and serves only

to perpetuate the diminished reputation of Wisconsin's highest
court, which my other colleagues and I are striving to restore.

The time Justice Abrahamson spent on these separate writings

would    have     been      better      served     drafting     a    proposed    rule     to

establish         a      procedure            specifically          addressing        these

circumstances.         Perhaps this court should enact a rule outlining

the proper procedure for processing deadlocked cases when a new

justice joins the court after the term has commenced so new

justices are not forced to defend themselves against decisions
made in good faith.               At present, no such rule or procedure

                                               8
                                                No.   2014AP2431.rgb


exists, and as I have explained, neither Justice Abrahamson's

experience in 1976 nor the United States Supreme Court practices

mirrors the circumstances presented here.




                                9
                                                                     No.       2014AP2431.ssa & awb


       ¶85       SHIRLEY       S.   ABRAHAMSON,         J.    and     ANN        WALSH     BRADLEY,

J.     (dissenting).             Stare decisis (Latin for "let the decision

stand") is a basic tenet of the rule of law.1                                    Although stare

decisis is not a mechanical formula requiring blind adherence to

precedent,           departing            from        precedent          requires           special

justification,2 and "[n]o change in the law is justified by a

change      in     the    membership        of   the    court       or     a    case     with    more

egregious facts."3

       ¶86       Although        the      majority          opinion        states         that    it

"adher[es] to the important principle of stare decisis,"4 it does

not.         The    majority        opinion,      without       special           justification,

departs from a unanimous, workable, and settled precedent of

this       court,    Waukesha       County       v.    Steven    H.,       2000      WI    28,    233

Wis. 2d 344,             607    N.W.2d 607,           and     unjustly          terminates       the

parental rights of Juanita A., a single mother with cognitive

difficulties, to her son, Matthew D.                           The termination is based

on     continuing         "child       in    need      of     protection           or     services"

("CHIPS") grounds.
       ¶87       At issue in the instant case is whether Juanita A.

received         notice        required     under      Wis.    Stat.           §§ 48.356(2)       and

       1
       See Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91,
¶31, 293 Wis. 2d 38, 717 N.W.2d 216.
       2
       Bartholomew, 2006 WI 91, ¶31 (citing Johnson Controls,
Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶94, 264
Wis. 2d 60, 665 N.W.2d 257).
       3
       State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591
(1994) (Abrahamson, J., concurring) (quoted source omitted).
       4
           Majority op., ¶3.


                                                 1
                                                      No.     2014AP2431.ssa & awb


48.415(2) of the grounds for termination of her parental rights

and the conditions for the return of Matthew D. to her home.

     ¶88    The   notice     requirements       contained        in    these   two

statutes are an important part of the "panoply of procedures"

created by the legislature "to assure that parental rights will

not be terminated precipitously or capriciously when the state

exercises its awesome power to terminate parental rights."5

     ¶89    As the court of appeals in the instant case correctly

concluded, under this court's unanimous decision in Steven H.,

Juanita A. did not receive the required statutory notice of the

grounds     for   termination    of    her     parental      rights      and   the

conditions for the return of her son.

     ¶90    Rather, over the course of these proceedings, at least

27 orders were issued, four of which were required under Wis.

Stat. § 48.356(2) to contain written notice of the grounds for

termination of her parental rights and the conditions for the

return of Juanita A.'s son.            Only one of those four orders6

contained the required notice.             Oral warnings, also required by
statute, were provided only three of the seven times they were

required.    See Wis. Stat. § 48.356(1).           Compounding these notice

deficiencies,     after    receiving   the     only   order      containing    the

required notice, Juanita A. received several orders containing


     5
       Waukesha Cnty. v. Steven              H.,   2000     WI   28,    ¶25,   233
Wis. 2d 344, 607 N.W.2d 607.
     6
       This order, issued on October 11, 2011, revised an order
entered on August 2, 2011, which did not contain written
warnings.


                                       2
                                                                    No.    2014AP2431.ssa & awb


contradictory information or suggesting that termination of her

parental rights may no longer have been a risk.

     ¶91      The majority opinion sets aside these troubling facts,

departs from Steven H., and concludes that one order containing

a   required        statutory       notice        is    sufficient              to   allow     the

termination of Juanita A.'s parental rights to Matthew D.7                                    In so

doing, the majority opinion withdraws the language in Steven H.

adopting the "last order" notice rule and replaces it with an

"at least one order" notice rule.8

     ¶92      We    disagree    with     the       majority         opinion.           We     would

adhere to the unanimous opinion in Steven H. and affirm the

court    of    appeals   in     the    instant         case.        We     would      hold     that

Juanita A. did not receive the required statutory notice of the

grounds       for    termination       of     her       parental           rights      and      the

conditions      for    the    return     of       Matthew      D.;        the    "last      order"

placing Matthew D. outside the home did not contain the required

statutory notice.

     ¶93      We write separately to make two points:
         1.   The majority opinion departs from precedent.                              Although

              the statutes at issue in Steven H. and in the instant

              case    have     not     changed,         the     majority             opinion    is

              misleading       in     stating      that        it    "adher[es]          to     the




     7
         Majority op., ¶2.
     8
         Majority op., ¶17.


                                              3
                                                No.   2014AP2431.ssa & awb


        important principle of stare decisis" in "clarifying"

        Steven H. by limiting its holding to its facts.9



        To interpret Steven H. as limited to its facts, the

        majority opinion withdraws the holding in Steven H.

        adopting the "last order" notice rule.10



        The majority opinion is misguided.              It ignores the

        accepted   rules   of   statutory   interpretation,      dilutes

        the   notice   given    to   parents,     and    departs     from

        precedent without special justification.



        Nothing aside from the membership of the court has

        changed since Steven H.      A change in membership of the

        court does not justify a departure from precedent.



2.      The change in membership of this court——specifically,

        the participation of Justice Rebecca G. Bradley, the
        author of the majority opinion in the instant case——

        appears inconsistent with past practice in this court

        and in the United States Supreme Court regarding the

        participation of a newly appointed justice in cases




9
     See majority op., ¶¶3-4.
10
     See majority op., ¶¶4 & nn.3-4, 17.


                                 4
                                                            No.   2014AP2431.ssa & awb


           heard    and     tentatively        decided       prior    to     the    new

           justice's joining the court.11

    ¶94    For    the     reasons   set       forth,   we     dissent      and     write

separately.

                                          I

    ¶95    In    Steven    H.,   this   court     addressed        whether       written

notice of the grounds for termination of parental rights and the

conditions necessary for the child to be returned to the home is

required, as Wis. Stat. § 48.356 states, in "any written order"12


    11
       Wisconsin Supreme Court Internal Operating Procedure II.E
states that after oral argument, "[w]hen possible, the court
reaches a decision in each of the cases argued that day, but any
decision is tentative until the decision is mandated."
    12
         Wisconsin Stat. § 48.356 provides:

    (1) Whenever the court orders a child to be placed
    outside his or her home, orders an expectant mother of
    an unborn child to be placed outside of her home, or
    denies a parent visitation because the child or unborn
    child has been adjudged to be in need of protection or
    services under s. 48.345, 48.347, 48.357, 48.363, or
    48.365 and whenever the court reviews a permanency
    plan under s. 48.38(5m), the court shall orally inform
    the parent or parents who appear in court or the
    expectant mother who appears in court of any grounds
    for termination of parental rights under s. 48.415
    which may be applicable and of the conditions
    necessary for the child or expectant mother to be
    returned to the home or for the parent to be granted
    visitation.

    (2) In addition to the notice required under sub. (1),
    any written order which places a child or an expectant
    mother outside the home or denies visitation under
    sub. (1) shall notify the parent or parents or
    expectant mother of the information specified under
    sub. (1).


                                          5
                                                       No.    2014AP2431.ssa & awb


placing the child outside the home, or in "one or more court

orders . . . containing        the        notice       required         by     s.

48.356(2) . . ." as stated in Wis. Stat. § 48.415(2)(a)1.13

     ¶96    In other words, two statutes that are not consistent

govern    the   notice   requirements     in   CHIPS    and     termination    of

parental rights proceedings.         The court unanimously so concluded

in Steven H.:14      "[A]lthough Wis. Stat. § 48.356(2) speaks of

written notice in any order placing the child outside the home,

§ 48.415(2) speaks of one or more court orders placing the child

containing written notice."15        "The words 'one or more orders' in

§ 48.415(2) are not the equivalent of 'any,' 'each,' 'all,' or

'every' order."16

     ¶97    To harmonize this inconsistency, the Steven H. court

unanimously held: (1) that Wis. Stat. §§ 48.356(2) and 48.415(2)

did not require that every order removing a child from his or


     13
          Wisconsin Stat. § 48.415(2) provides in relevant part:

     (2) Continuing need of protection or services.
     Continuing need of protection or services, which shall
     be established by proving any of the following:

     (a)1. That the child has been adjudged to be a child
     or an unborn child in need of protection or services
     and placed, or continued in a placement, outside his
     or her home pursuant to one or more court orders under
     s. 48.345, 48.347, 48.357, 48.363, 48.365, 938.345,
     938.357, 938.363 or 938.365 containing the notice
     required by s. 48.356 (2) or 938.356 (2).
     14
          See Steven H., 233 Wis. 2d 344, ¶¶30-32.
     15
          Steven H., 233 Wis. 2d 344, ¶22.
     16
          Steven H., 233 Wis. 2d 344, ¶30.


                                      6
                                                    No.   2014AP2431.ssa & awb


her   home     contain     the    notice   prescribed       by     Wis.   Stat.

§ 48.356(2); and (2) "that Wis. Stat. §§ 48.356(2) and 48.415(2)

require that the last order specified in § 48.356(2) placing a

child outside the home, which must be issued at least six months

before the filing of the petition to terminate parental rights,

must contain the written notice prescribed by § 48.356(2)."17

Nonetheless,     the     court   advised   that   circuit        courts   should

include the written notice required by Wis. Stat. § 48.356(2) in

all orders to which the statute applies.18          The notice can easily

be attached to each written order.

      ¶98    The majority opinion's rejection of the "last order"

notice rule in Steven H. and adoption of an "at least one order"

notice rule19 is misguided for the following reasons.

      ¶99    First, contrary to the majority opinion's insinuations

of conflict in decisions of the court of appeals, the "last

order" notice rule is settled law in Wisconsin.

      ¶100 Relying on a court of appeals decision issued shortly

after Steven H. was mandated in 2000, namely Waushara County v.
Lisa K., 2000 WI App 145, 237 Wis. 2d 830, 615 N.W.2d 204, the

majority opinion explains that even though the "last order" in

the instant case did not contain the required notice, notice was

still adequate.



      17
           Steven H., 233 Wis. 2d 344, ¶3 (emphasis added).
      18
           Steven H., 233 Wis. 2d 344, ¶3.
      19
           Majority op., ¶¶4, 17.


                                      7
                                                         No.       2014AP2431.ssa & awb


      ¶101 In Lisa K., the court of appeals did not apply Steven

H.'s "last order" notice rule.                Instead, Lisa K. distinguished

Steven H. on its facts, noting that in Lisa K., the required

notices of the grounds for termination of parental rights and

the conditions for the return of the child were given on all

occasions they were required except in the last order, and the

parent did not complain of confusion as a result of the absence

of notice.20        As a result, "[c]onsidering Steven H.'s dual focus

on adequate notice of the conditions with which a parent must

comply and the warning that parental rights are in jeopardy,"

the   court    of    appeals   concluded      that   Lisa     K.    had   "more    than

adequate notice . . . ."21

      ¶102 Lisa K. is distinguishable.               Unlike the parent in Lisa

K.,   Juanita       A.   understandably    complains     of    confusion      in    the

instant case.        Juanita A. did not receive the required notice in

three of the four orders placing Matthew D. outside her home.

After receiving the only order containing the required notice,

Juanita A. received orders containing contradictory information
or suggesting that her parental rights to Matthew D. were no




      20
        Waushara Cnty. v. Lisa K., 2000 WI App 145, ¶10, 237
Wis. 2d 830, 615 N.W.2d 204.    In Lisa K., the parties also
argued that part of the "last order" incorporated by reference
the previous notices given to the parent. The court of appeals
did not, however, reach the question of whether that satisfied
the   statutory  notice  requirements.    See  Lisa   K.,  237
Wis. 2d 830, ¶2 nn.2-3.
      21
           Lisa K., 237 Wis. 2d 830, ¶10.


                                          8
                                                            No.   2014AP2431.ssa & awb


longer      in     jeopardy.22      The    circuit       court's     oral      warnings

regarding termination of parental rights and the conditions for

the return to the home were also deficient.                   Oral warnings were

provided on three of the seven occasions they were required, and

were not given at the final hearing.

       ¶103 Although the majority opinion relies on Lisa K., it

does not adopt the "adequate notice" standard adopted in Lisa

K.23

       ¶104 Instead, the majority opinion relies on Lisa K. to

demonstrate        its    contention      that    "Steven    H.     has     created    a

question      in    the   court   of    appeals    and    circuit    courts      as   to

whether Steven H. created a bright-line rule requiring that the

last order in a CHIPS case contain the written notice in order

to satisfy Wis. Stat. § 48.415(2)(a)1.                   Courts . . . are ruling

different ways on this question."24

       ¶105 Lisa K. is the only court of appeals decision cited by

the    majority      opinion     that   concludes    that    failing      to   provide

notice of the grounds for termination of parental rights and the
conditions necessary for the child to be returned to the home in

the "last order . . . placing the child outside the home, which

       22
       For example, permanency hearing orders given on June 5,
2013, and May 15, 2014, state at first that the court finds the
permanency goal is no longer returning Matthew D. to Juanita
A.'s home, but later state that the permanency goal remains
return to the home.
       23
       The majority opinion suggests at times, however, that
notice in the instant case was "adequate." Majority op., ¶¶18-
19.
       24
            Majority op., ¶18.


                                           9
                                                          No.    2014AP2431.ssa & awb


must be issued at least six months before the filing of the

petition    to     terminate     parental        rights"25     does    not   require

dismissal of the petition to terminate parental rights.

     ¶106 In       fact,   the    court         of   appeals    has    consistently

followed the "last order" notice rule in Steven H.                     As the court

of appeals put it in the instant case, Steven H.'s adoption of

the "last order" notice rule "was unequivocal.                     The last order

must contain the notice prescribed by Wis. Stat. § 48.356(2)."26

     ¶107 For cases recognizing and applying the "last order"

notice rule in Steven H., see, for example:27

     • State v. Amelia A., Nos. 2015AP630-31, unpublished slip

          op., ¶¶10-11 (Wis. Ct. App. June 9, 2015);

     • Portage       Cnty.     DHHS        v.    Julie   G.,     No.    2014AP1057,

          unpublished slip op., ¶¶20-21 (Wis. Ct. App. July 31,

          2014);

     • Florence      Cnty.     DHS    v.    Jennifer     B.,    Nos.   2011AP88-90,

          unpublished slip op., ¶11 (Wis. Ct. App. Aug. 19, 2011);



     25
          Steven H., 233 Wis. 2d 344, ¶3.
     26
       St. Croix Cnty. Dep't of Health & Human Servs. v. Michael
D., No. 2014AP2431, unpublished slip op., ¶13 (Wis. Ct. App.
Jan. 16, 2015).
     27
       Unpublished court of appeals decisions may be cited for
purposes other than as precedent or authority.  See Wis. Stat.
§ (Rule) 809.23(3). For example, citations to unpublished
decisions are permissible to show conflict among the districts
of the court of appeals.       See State v. Higginbotham, 162
Wis. 2d 978, 996-98, 471 N.W.2d 24 (1991).      We are citing
unpublished court of appeals cases to show consistency of
reasoning and result in court of appeals cases.


                                           10
                                                                No.    2014AP2431.ssa & awb


        • Walworth Cnty. v. Jeanna R., No. 2009AP1952, unpublished

             slip op., ¶¶16-17 (Wis. Ct. App. Nov. 11, 2009);

        • Dunn        Cnty.   DHS     v.    Debra    O.,        Nos.        2008AP1775-77,

             unpublished slip op., ¶¶6-7 (Wis. Ct. App. Jan. 9, 2009);

             and

        • State v. Zena H., Nos. 99-1777, 99-1813, unpublished slip

             op., ¶17 (Wis. Ct. App. Apr. 25, 2000).

        ¶108 The majority opinion cites some (but not all) of these

authorities,          but   fails    to    recognize      the     court      of   appeals'

consistent         recognition      and    application      of        the   "last   order"

notice rule adopted by Steven H.28

        ¶109 Instead, the majority opinion argues that these cases

"demonstrate the factual variations that arise in TPR cases and

how the courts have reached differing decisions based on Steven

H."29        Simply    because      different    cases,    with        different    facts,

raising different legal issues have arisen since Steven H. does

not undermine Steven H.'s unanimous, "unequivocal," "last order"

notice rule.
        ¶110 Wisconsin jury instructions also recognize the "last

order" notice rule adopted by Steven H.                     See Comment, Wis JI——

Children 324A.

        ¶111 Second, the majority opinion relies on Pierce County

v. Amy F., No. 2004AP1552, unpublished slip op. (Wis. Ct. App.

Aug. 31, 2004), to support its position that courts are ruling


        28
             Majority op., ¶20.
        29
             Majority op., ¶20.


                                            11
                                                            No.   2014AP2431.ssa & awb


in different ways on whether Steven H. created a bright-line

rule requiring that the last order in a CHIPS case contain the

written notice.30

       ¶112 Amy    F.   is    inapposite.          It   addressed        a   different

question, namely whether a petition to terminate parental rights

should be dismissed because the parent did not receive the "last

order."

       ¶113 Third,      the   "last       order"    notice        rule   unanimously

adopted in Steven H., unlike the "at least one order" notice

rule    adopted    by   the   majority      opinion     in    the    instant     case,

fulfills the expressed legislative purposes of the Children's

Code.

       ¶114 As    the   court      stated    in    Steven     H.,    the     expressed

legislative purposes of the Children's Code, set forth in Wis.

Stat.       § 48.01,    "assist[]     the     court     in        interpreting     the

inconsistent      language    of    the     two    statutes."31          Among   other

       30
            Majority op. ¶20.
       31
            Steven H., 233 Wis. 2d 344, ¶32.

     Wisconsin Stat. § 48.01, captioned "Title and legislative
purpose" provides in relevant part as follows:

       (1) This chapter may be cited as "The Children's
       Code". In construing this chapter, the best interests
       of the child or unborn child shall always be of
       paramount consideration.      This chapter shall be
       liberally   construed  to   effectuate the  following
       express legislative purposes:

       (a) While recognizing that the paramount goal of this
       chapter is to protect children and unborn children, to
       preserve   the   unity   of   the   family,   whenever
       appropriate, by strengthening family life through
       assisting parents and the expectant mothers of unborn
                                                       (continued)
                                 12
                                                     No.   2014AP2431.ssa & awb


things,      the       expressed      purposes      include        "assist[ing]

parents . . . in changing any circumstances in the home which

might    harm    the   child . . . ,"    and   "provid[ing]    judicial       and

other     procedures    through    which . . . interested          parties     are

assured fair hearings and their constitutional and other legal

rights     are     recognized   and     enforced . . . ."          Wis.      Stat.

§ 48.01(1)(a), (ad).

    ¶115 Unlike        the   majority   opinion's   "at    least    one   order"

notice rule, the "last order" notice rule ensures that parents

"will be given adequate notice of the conditions for return and

time to make any necessary changes to forestall the termination


    children, whenever appropriate, in fulfilling their
    responsibilities as parents or expectant mothers. The
    courts and agencies responsible for child welfare,
    while assuring that a child's health and safety are
    the paramount concerns, should assist parents and the
    expectant mothers of unborn children in changing any
    circumstances in the home which might harm the child
    or unborn child, which may require the child to be
    placed outside the home or which may require the
    expectant mother to be taken into custody. The courts
    should recognize that they have the authority, in
    appropriate cases, not to reunite a child with his or
    her family.   The courts and agencies responsible for
    child welfare should also recognize that instability
    and impermanence in family relationships are contrary
    to the welfare of children and should therefore
    recognize the importance of eliminating the need for
    children to wait unreasonable periods of time for
    their parents to correct the conditions that prevent
    their safe return to the family.

    (ad) To provide judicial and other procedures through
    which children and all other interested parties are
    assured fair hearings and their constitutional and
    other legal rights are recognized and enforced, while
    protecting the public safety.


                                        13
                                                                 No.   2014AP2431.ssa & awb


of parental rights . . . ." while avoiding the confusion that

might result if a parent receives orders without the statutory

notice after receiving earlier orders containing the required

notice.32

       ¶116 Moreover, the majority opinion's "at least one order"

notice rule dilutes the notice received by parents.                                 Because

petitions to terminate parental rights based on continuing CHIPS

are filed by the State or county, the circuit court does not

necessarily know whether an order placing a child outside the

home will be the "last order."33                    As a result, circuit courts

have an incentive under the "last order" notice rule to provide

notice      in    all     CHIPS   orders.        Under    the    majority      opinion,     a

circuit court can simply provide the warnings in the first order

placing the child outside the home and dispense with notice

thereafter.

       ¶117 Although the majority opinion expresses "confiden[ce]"

that     its      holding     will      not   dilute      the    notice     received        by

parents,34        the     court   is    wading     into    dangerous        waters.         "A
parent's         desire    for    and    right     to    the     companionship,       care,

custody, and management of his or her children is an important

interest         that     undeniably     warrants        deference      and,      absent     a

powerful countervailing interest, protection."                          Sheboygan Cnty.


       32
            Steven H., 233 Wis. 2d 344, ¶¶31, 35.
       33
       See Kenosha Cnty. v.                   Jodie     W.,     2006   WI   93,    ¶8,     293
Wis. 2d 530, 716 N.W.2d 845.
       34
            Majority op., ¶17 n.8.


                                              14
                                                               No.   2014AP2431.ssa & awb


v. Julie A.B., 2002 WI 95, ¶22, 255 Wis. 2d 170, 648 N.W.2d 402

(internal     quotation     marks        omitted).             Diluting     the   notice

received by parents of the grounds for termination of parental

rights and the conditions for the child's return undermines the

fairness      and    adequacy      of     termination          of    parental     rights

proceedings and may raise significant constitutional due process

issues.

      ¶118 Fourth, the majority opinion's interpretation of Wis.

Stat.      § 48.415(2)    ignores        and        violates     accepted      rules    of

statutory     interpretation.            The       majority    opinion    states       that

"[o]ur standards for interpreting statutes are well-known and

need not be repeated here."35                      It appears that the majority

opinion's failure to state the rules resulted in the majority

opinion's failure to apply them.

      ¶119 The majority opinion examines Wis. Stat. § 48.415(2),

but     essentially      ignores        the        text   of    a    related      statute

§ 48.356(2).        The majority opinion states that because this is a

termination of parental rights case, "not a CHIPS case," only
Wis. Stat. § 48.415(2) is relevant.36                     This conclusion ignores

the fact that § 48.415(2) deals specifically with termination of

parental rights actions based on CHIPS and cross-references "the

notice required by [Wis. Stat. §] 48.356(2)."37



      35
           Majority op., ¶15.
      36
           Majority op., ¶17.
      37
           Wis. Stat. § 48.415(2)(a)1.


                                              15
                                                        No.    2014AP2431.ssa & awb


     ¶120 In its plain-meaning analysis, the majority opinion

overlooks the well-accepted rule that context is important to

meaning,    as   is    the   structure      of   the   statute    in    which    the

operative language appears.               Statutory language is interpreted

in the context in which it is used, as part of a whole; not in

isolation, but in relation to the language of surrounding or

closely related statutes.38          Thus, the majority opinion errs in

its statutory interpretation.

     ¶121 Furthermore,         as   we    stated    previously,    the    majority

opinion dilutes the statutory notice requirements and may be

treading on the constitutional rights of a parent.                     A statutory

interpretation        that   does   not    raise    constitutional      issues   is

preferable to one that does.39

     ¶122 Fifth and finally, the majority opinion is misleading

when it states it is "clarifying"                  Steven H.     by interpreting

Steven H. to be limited to its facts.40                       The "unequivocal"

holding of Steven H. is not limited to its facts.                        Steven H.

expressly applies to termination of parental rights cases based
on continuing CHIPS.         The Steven H. court states:

     We conclude that Wis. Stat. §§ 48.356(2) and 48.415(2)
     require that the last order specified in § 48.356(2)
     placing a child outside the home, which must be issued
     38
       See Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶11, 315
Wis. 2d 350, 760 N.W.2d 156.
     39
       See Jankowski v. Milwaukee Cnty., 104 Wis. 2d 431, 439,
312 N.W.2d 45 (1981) ("'[S]tatutes should be construed so as to
avoid constitutional objections.'") (quoting Niagara of Wis.
Paper Corp. v. DNR, 84 Wis. 2d 32, 50, 268 N.W.2d 153 (1978)).
     40
          See majority op., ¶4.


                                          16
                                                             No.    2014AP2431.ssa & awb

      at least six months before the filing of the petition
      to terminate parental rights, must contain the written
      notice prescribed by § 48.356(2).
Steven H., 233 Wis. 2d 344, ¶3; see also Steven H., ¶31.

      ¶123 The majority opinion explicitly withdraws this holding

of Steven H.,41 ostensibly to "clarify" that Steven H. applied

only to its facts.          But Steven H. unequivocally adopted a "last

order"     notice    rule      for    termination     of   parental       rights     cases

based on continuing CHIPS.              Steven H. did not limit its holding

to the precise facts and circumstances of that case.

      ¶124 Thus, the majority opinion's adoption of the "at least

one   order"       notice      rule    departs      from     precedent.         And    no

sufficient        justification        is   provided       for     this    departure.42

Adhering     to    precedent      is    "the     preferred    course      [of   judicial

action]      because      it     promotes        evenhanded,       predictable,        and

consistent development of legal principles . . . and contributes

to the actual and perceived integrity of the judicial process."43

      ¶125 "This       court     is     more     likely     to     overturn     a    prior

decision when one or more of the following circumstances is

present:     (1) Changes or developments in the law have undermined

the rationale behind a decision; (2) there is a need to make a

decision correspond to newly ascertained facts; (3) there is a

showing     that    the     precedent       has    become        detrimental    to    the


      41
           See majority op., ¶¶4 & nn.3-4, 17.
      42
           Bartholomew, 293 Wis. 2d 38, ¶32 (citations omitted).
      43
       State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting State v. Ferron, 219 Wis. 2d 481, 504, 579
N.W.2d 654 (1998)).


                                            17
                                                         No.      2014AP2431.ssa & awb


coherence and consistency in the law; (4) the prior decision is

'unsound in principle'; or (5) the prior decision is "unworkable

in practice.'"44

       ¶126 The majority opinion does not state which, if any, of

these circumstances justifies its departure from precedent in

the instant case.        The answer in the instant case is none.

       ¶127 No changes or developments in the law have occurred.

No    newly    ascertained      facts   undermine      the     court's      unanimous

decision in Steven H.

       ¶128 To the contrary, subsequent circumstances bolster the

unanimous holding in Steven H.               Since Steven H. was decided in

2000, the legislature has amended Wis. Stat. § 48.415 nine times

and   Wis.     Stat.   § 48.356   twice.45       By    amending      both   statutes

without       removing    the     conflicting         language       or     otherwise

disturbing      the    "last   order"   notice    rule       in    Steven    H.,   the

legislature "accepted and ratified" our holding.46

       44
            Bartholomew, 293 Wis. 2d 38, ¶33.
       45
       See 2011 Wis. Act 271; 2011 Wis. Act 257; 2009 Wis. Act
185; 2009 Wis. Act 94; 2007 Wis. Act 116; 2007 Wis. Act 45; 2005
Wis. Act 293; 2005 Wis. Act 277; 2003 Wis. Act 321; 2001 Wis.
Act 109; 2001 Wis. Act 2.
       46
       See Tex. Dep't of Housing & Cmty. Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015)
("Congress' decision . . . to amend the FHA while still adhering
to the operative language . . . is convincing support for the
conclusion that Congress accepted and ratified the unanimous
holdings of the Court of appeals . . . ."); see also Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal
Texts 322 (2009) ("If a word or phrase has been authoritatively
interpreted by the highest court in a jurisdiction . . . a later
version of that act perpetuating the wording is presumed to
carry forward that interpretation.).


                                        18
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    ¶129 The majority opinion does not argue that the court's

unanimous decision in Steven H. is detrimental to the coherence

or consistency of the law or that it is unworkable.                     Contrary to

the majority opinion's suggestion, the court of appeals has all

but universally followed Steven H.'s "last order" notice rule.

    ¶130 At best, the majority opinion's sole justification for

its departure from precedent is that Steven H. is unsound in

principle because it does not "apply the statutory words chosen

by the legislature."47          Wrong!        Steven H. applied the accepted

rules of statutory interpretation.

    ¶131 As we explained more fully above (and as the Steven H.

court unanimously concluded), the statutory words chosen by the

legislature    are    inconsistent.             Wisconsin       Stat.   § 48.356(2)

requires that notice accompany "any written order" placing the

child outside the home.           Wisconsin Stat. § 48.415(2) requires

notice in "one or more court orders under s. 48.345, 48.347,

48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365

containing the notice required by s. 48.356(2) . . . ."
    ¶132 The         majority     opinion         tries     to      escape      this

inconsistency by arguing that because the instant case is a

termination of parental rights case, we must apply only Wis.

Stat. § 48.415(2).       However, this termination of parental rights

action   is   based     on   continuing         CHIPS.      Under       Wis.   Stat.

§ 48.356(2), any written CHIPS order placing a child outside the

home must contain written notice of the grounds for termination


    47
         See majority op., ¶25.


                                         19
                                                             No.    2014AP2431.ssa & awb


of parental rights and the conditions for the return of the

child.        Moreover, Wis. Stat. § 48.415(2) explicitly refers to

"the        notice    required     by    s.        48.356(2),"      and    Wis.     Stat.

§ 48.356(2) requires notice in "any written order."

       ¶133 The question is:            What, if anything, has changed since

the court's unanimous decision in Steven H.?                       The answer is the

membership of the court.

       ¶134 Four       justices    who   have       joined   the    court       since   our

unanimous decision in Steven H. now simply disagree with Steven

H.     A change in membership of the court is not a sufficient

justification for departing from precedent.48                      "When existing law

is open to revision in every case, deciding cases becomes a mere

exercise       of    judicial    will,     with     arbitrary      and    unpredictable

results."49

                                            II

       ¶135 We turn now to the participation of a new member of

the court in deciding the instant case.                          Justice Rebecca G.

Bradley's       concurring       opinion      in     the   instant       case    explains
publicly, for the very first time, her decision to participate

in (some, but not all) cases argued before she became a member

of the court.



       48
       See      Johnson Controls, 264 Wis. 2d 60, ¶138 ("No change in
the law is      justified by 'a change in the membership of the court
or a case       with more egregious facts.'") (quoting Stevens, 181
Wis. 2d at      441-42 (Abrahamson, J., concurring)).
       49
       Luedtke, 362 Wis. 2d 1, ¶40 (quoting Schultz v. Natwick,
2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266).


                                            20
                                                             No.    2014AP2431.ssa & awb


       ¶136 All      the   decisions      (but     one)    in      cases   argued      and

tentatively decided before the new justice's appointment to the

court have been released.           This writing is to update the status

of these cases and compare Justice Rebecca G. Bradley's public

approach to the role of a new justice in deciding cases argued

and pending on her appointment and the approach taken in the

past    in   this    court   and   in     the    United     States     Supreme       Court

regarding the role of a new justice.

       ¶137 Indeed,        the   United        States     Supreme     Court     is    now

addressing     the    implications        of    the     recent     death   of   Justice

Antonin Scalia and the possibility that a new justice will be

appointed to fill his seat.                The eight United States Supreme

Court justices are expected to follow the Court's past practice

of setting selected cases for reargument to enable a new justice

to participate in deciding these cases.                    The practice has been

described previously and we summarize it below.50




       50
       See New Richmond News v. City of New Richmond, 2015 WI
106, ¶24, 365 Wis. 2d 610, 875 N.W.2d 107 (Abrahamson, J.,
concurring) (describing the past practice of the United States
Supreme Court following the resignation, retirement, or death of
a member of the Court).

                                                                           (continued)
                                          21
                                               No.   2014AP2431.ssa & awb


     ¶138 The   facts   and    circumstances   of    the     change   in

membership of the court, the status of cases heard in September

and October, and the issues raised by a new justice's joining

the court has been set forth previously.51

     ¶139 The question of a new justice's participation in cases

upon his or her appointment should, we hope, be approached by

the court and the justices in a descriptive, analytical, and

historical   manner,    free   from   divisiveness      or    offensive

posturing, personal attacks, and false accusations.52

     ¶140 Engaging in or responding to such personal attacks and

accusations neither sheds light on the inquiry before us nor

promotes public trust and confidence in the court.




     Media accounts following the recent death of Justice
Antonin Scalia concur in the descriptions of the practice in the
United States Supreme Court in prior separate writings on this
issue. See Adam Liptak, Deadlocks and Rearguments: What's Ahead
for the Supreme Court, N.Y. Times (Feb. 18, 2016) ("Q. Would a
new justice be able to vote on cases argued before he or she was
confirmed?   A. No.   Cases in which the current justices were
deadlocked, 4 to 4, would require rearguments to allow a new
justice to participate.") (emphasis added); Adam Liptak,
Scalia's Absence Is Likely to Alter Court's Major Decisions This
Term, N.Y. Times (Feb. 14, 2016); see also Tom Goldstein, Tie
votes will lead to reargument, not affirmance, SCOTUSblog (Feb.
14, 2016, 3:14 PM), http://www.scotusblog.com/2016/02/tie-votes-
will-lead-to-reargument-not-affirmance/.
     51
       See New Richmond, 365 Wis. 2d 610, ¶7 (Abrahamson, J.,
concurring);   State   v.  Matalonis,   2016   WI    7,  ¶70,   366
Wis. 2d 443,   875   N.W.2d 567   (Abrahamson,    J.,   dissenting)
(quoting New Richmond, 365 Wis. 2d 610, ¶7).
     52
       The election for Justice Rebecca G. Bradley's seat was
held on Tuesday, April 5, 2016.


                                 22
                                                     No.   2014AP2431.ssa & awb


     ¶141 To summarize the historical facts briefly, Justice N.

Patrick   Crooks   passed   away   on    September   21,    2015.     Justice

Rebecca G. Bradley joined the court on October 9, 2015.                During

the period between September 8, 2015, and October 9, 2015, when

Justice Rebecca G. Bradley was not a member of the court, the

court heard oral argument and tentatively decided sixteen cases.

See Supreme Court Internal Operating Procedure II.E.53




     53
       It was announced at oral arguments on September 17, 2015,
and September 18, 2015, that Justice N. Patrick Crooks would not
be attending oral arguments in the six cases argued and
tentatively decided on those dates (including the instant case).
It was announced that Justice N. Patrick Crooks would
participate in these cases by watching oral arguments on
WisconsinEye and discussing the cases in conference via
telephone.

     Thus counsel were aware of the nature of Justice N. Patrick
Crooks' participation in the cases argued on September 17, 2015
and September 18, 2015. Counsel did not object.

     There is precedent in this court for a member of the court
to do as Justice Crooks explained he would do.     There is also
precedent in this court for a member of the court who has not
attended oral argument to decline to participate in deciding the
case.

     In contrast, counsel did not know that Justice Rebecca G.
Bradley, who was appointed to the court after oral argument,
would be participating in the cases heard and tentatively
decided prior to her appointment.      Until the decisions were
released, counsel had no opportunity to ask for reargument with
Justice Rebecca G. Bradley present or to object to Justice
Rebecca G. Bradley's participation without reargument.


                                    23
                                                             No.    2014AP2431.ssa & awb


      ¶142 In 12 of these cases, Justice Rebecca G. Bradley did

not participate in the decision of the court.54                      In one of these

cases, a case before this court on bypass from the court of

appeals, New Richmond News v. City of New Richmond, 2015 WI 106,

¶1,   365   Wis. 2d 610,      875    N.W.2d 107,       the    court's        per   curiam

decision     explained     the      new    justice's     non-participation             as

follows: "The court is equally divided on whether to affirm or

reverse the judgment of the circuit court for St. Croix County.

This case was argued before the full court; however, Justice N.

Patrick     Crooks   passed      away     prior   to    the        court's    decision.

Justice Rebecca G. Bradley was appointed to the court after the

court's decision, and therefore did not participate."55



      54
       See In re Marriage of Meister, 2016 WI 22, ¶49, ___
Wis. 2d ___, 876 N.W.2d 746; State v. Smith, 2016 WI 23, ¶59,
___ Wis. 2d ___, ___ N.W.2d ___; United Food & Commercial
Workers Union v. Hormel Foods Corp., 2016 WI 13, ¶107, 367
Wis. 2d 131, 876 N.W.2d 99; Wis. Pharmacal Co., LLC v. Neb.
Cultures of Cal., Inc., 2016 WI 14, ¶86, 367 Wis. 2d 221, 876
N.W.2d 72; Burgraff v. Menard, Inc., 2016 WI 11, ¶81, 367
Wis. 2d 50, 875 N.W.2d 596; Hoffer Props., LLC v. DOT, 2016 WI
5, ¶48, 366 Wis. 2d 372, 874 N.W.2d 533; State v. Valadez, 2016
WI 4, ¶56, 366 Wis. 2d 332, 874 N.W.2d 514; State v. Dumstrey,
2016 WI 3, ¶52, 366 Wis. 2d 64, 873 N.W.2d 502; Winnebago Cnty.
v. Christopher S., 2016 WI 1, ¶58, 366 Wis. 2d 1, ___
N.W.2d ___; Wis. Dep't of Justice v. Wis. Dep't of Workforce
Dev., 2015 WI 114, ¶60, 365 Wis. 2d 694, 875 N.W.2d 545; New
Richmond News, 365 Wis. 2d 610, ¶4; State v. Iverson, 2015 WI
101, ¶62, 365 Wis. 2d 302, 871 N.W.2d 661.
      55
        New Richmond, 365 Wis. 2d 610, ¶1.     The per curiam
opinion went on to explain that Justice Shirley S. Abrahamson,
Justice Ann Walsh Bradley, and Justice David T. Prosser would
affirm.    Chief Justice Patience Drake Roggensack, Justice
Annette Kingsland Ziegler, and Justice Michael Gableman would
reverse.


                                          24
                                                               No.    2014AP2431.ssa & awb


       ¶143 In three of these cases (including the instant case),

Justice Rebecca G. Bradley participated in the decisions.56

       ¶144 One of these three cases in which Justice Rebecca G.

Bradley participated, namely State v. Matalonis, 2016 WI 7, 366

Wis. 2d 443, 875 N.W.2d 567, was a 4-3 decision overturning the

decision of the court of appeals.                 A motion for reconsideration

was     filed      alleging      that     Justice         Rebecca        G.     Bradley's

participation violated the defendant's equal protection and due

process rights.          The motion was denied.

       ¶145 In     two    of   the     cases    in    which     Justice       Rebecca   G.

Bradley      participated,       namely    the       instant    case     and    State    v.

Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d 619, the final

vote in each of the two cases was 5-2.                     Thus, the instant case

and Parisi present different fact situations than Matalonis, in

which       Justice    Rebecca   G.     Bradley      appears     to     have    cast    the

deciding vote, and New Richmond, a bypass case in which the

justices       were     evenly    divided        without       Justice        Rebecca    G.

Bradley's participation.
       ¶146 In        prior    writings       reviewing       the     experiences       and

practices of this court and the United States Supreme Court,

when    a    new   justice     joins    the    court,     the       conclusion    was    as

follows:       A new justice who did not participate in oral argument

       56
       The other two cases are State v. Parisi, 2016 WI 10, 367
Wis. 2d 1, 875 N.W.2d 619; and State v. Matalonis, 2016 WI 7,
366 Wis. 2d 443, 875 N.W.2d 567.

     A decision in one case (argued, like the instant case, on
September 17, 2015) has not yet been released: State v. LeMere,
No. 2013AP2433-CR.


                                          25
                                                             No.     2014AP2431.ssa & awb


does not participate in the decision of the case unless the

other     members    of   the    court     decide     that     the    case   should     be

reargued.57    The new justice may participate in reargument.

     ¶147 Taking a different and contrasting approach to this

prior     precedent,      Justice    Rebecca     G.    Bradley       explains    in    her

concurrence in the instant case that the new justice alone, not

the court, decides whether the new justice will participate in a

case that has been argued and tentatively decided before the new

justice joined the court.

     ¶148 Justice         Rebecca     G.    Bradley's    public        explanation      of

whether she will participate in cases argued but not decided

before her appointment to the court and her explanation for her

decision      to     avoid      reargument       are     useful        and    important

information for the bench, bar, and public.                            It sets a new

precedent     that    informs       and    guides     future    practices       of    this

court.     In sum, it is beneficial to finally have Justice Rebecca

Bradley's public explanation in writing as part of the court's

record.
                                          * * * *

     ¶149 We conclude that the majority opinion, without special

justification, departs from a unanimous, workable, and settled

precedent of this court, Waukesha County v. Steven H., 2000 WI

     57
       Audio recordings of oral arguments in this court have
been available for many years.   Likewise, audio recordings of
oral arguments in the United States Supreme Court have been
available since 1955.     See Oyez, http://www.oyez.org/about
("[Oyez] is a complete and authoritative source for all of the
Court's audio since the installation of a recording system in
October 1955.").


                                            26
                                                        No.   2014AP2431.ssa & awb


28, 233 Wis. 2d 344, 607 N.W.2d 607, and unjustly terminates the

parental rights of Juanita A., a single mother with cognitive

difficulties, to her son, Matthew D.           In so doing, the majority

opinion    withdraws   language    in     Steven   H.    adopting     the   "last

order" notice rule and replaces it with an "at least one order"

notice rule.58

     ¶150 The      majority       opinion      provides         no     "special"

justification for departing from precedent.                   The only change

since Steven H. is in the membership of this court.

     ¶151 For    the   reasons    set     forth,   we     dissent    and    write

separately.




     58
          See majority op., ¶17.


                                     27
    No.   2014AP2431.ssa & awb




1
