Background
Gwen (G.L.) gave birth to Annie in May 2021 but was unable to care for her due to intellectual disability and mental health issues. Annie was initially placed with Gwen’s sister as legal guardian, then moved to foster care when the sister could no longer provide care. The Division of Milwaukee Child Welfare (DMCW) became involved when Annie was approximately two-and-a-half years old. A CHIPS (child in need of protection or services) dispositional order entered in June 2024 required DMCW to provide Gwen with specific services: a psychological evaluation and compliance with recommendations, a parenting assessment, parenting education, a visitation plan with transportation assistance, and therapy services.
A psychological evaluation revealed that Gwen had Intellectual Disability (mild) and Bipolar II Disorder, with her cognitive ability measured as “extremely low.” The evaluating psychologist diagnosed her with difficulty learning and retaining information, intense distrust of others, low frustration tolerance, and parenting stress exceeding average levels. The psychologist recommended individual therapy and parent-child therapy with Annie. Over many months, DMCW case managers repeatedly discussed therapy options with Gwen, but she steadfastly refused. DMCW provided a parenting class (which Gwen completed), a one-on-one parenting aide (who communicated via phone after Gwen refused in-home visits), supervised visitation at four hours per week, and additional individualized accommodations tailored to her cognitive impairment. The jury found that DMCW had made reasonable efforts to provide services, that Gwen failed to meet the conditions for safe return, and that no substantial likelihood existed she would meet them by the statutory deadline.
The Court’s Holding
The Court of Appeals affirmed the termination order, holding that the State proved by clear and convincing evidence that DMCW made “reasonable effort” to provide court-ordered services. The court explained that 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, the level of cooperation of the parent, and other relevant circumstances of the case.” The fact that DMCW used a standard parenting assessment was not insufficient merely because it was the form used for all parents; the assessment was supplemented by continuous observation of Gwen’s parenting during supervised visits with Annie. The court found credible evidence that Gwen’s parenting was assessed continually throughout the case.
Regarding parenting services, the court rejected Gwen’s argument that DMCW should have done more to facilitate in-person meetings with the parenting aide. The court clarified that the standard is whether efforts were reasonable, not whether the department “could have attempted to do more.” Because Gwen needed extra help implementing what she learned in the parenting class, DMCW provided a personal aide—satisfying the requirement despite Gwen’s refusal to allow in-home visits. On the therapy issue, the court emphasized that a parent’s lack of cooperation is a relevant factor in determining whether the state’s effort was reasonable. DMCW’s repeated discussions of therapy with Gwen over many months, both before and after the psychological evaluation, constituted reasonable effort even though Gwen refused to participate.
The court also rejected Gwen’s ADA arguments. First, the court found that Gwen waived her ADA claims by never raising them in the circuit court—the ADA was not mentioned by name or discussed, depriving the trial court and State of opportunity to address the issue. Second, even if not waived, Wisconsin law (established in Raymond C.) holds that the ADA does not define or increase the duties of child welfare agencies in termination proceedings and is not a defense to TPR. The court distinguished the Michigan Supreme Court’s decision in Hicks/Brown, where the parent’s attorney had repeatedly requested accommodations that were never provided before trial—no such facts existed here.
Key Takeaways
- Wisconsin courts will not impose ADA-based requirements beyond the “reasonable efforts” standard already mandated by statute, and ADA arguments must be preserved at trial or are waived on appeal
- A parent’s intellectual or cognitive disability is a “characteristic of the parent” that must be considered in assessing reasonableness of efforts, but it does not lower the threshold or require unlimited accommodations
- A parent’s lack of cooperation is a significant factor relevant to whether state efforts were reasonable; services need not succeed if the parent refuses to participate
- Agencies may satisfy requirements through a combination of standard services (parenting class, assessment forms) supplemented by individualized observation and support, rather than entirely custom-tailored programs
Why It Matters
This decision clarifies a critical boundary in family law and disability rights: while child welfare agencies must consider a parent’s disability when determining the reasonableness of reunification efforts, the ADA does not impose independent obligations beyond Wisconsin’s statutory “reasonable efforts” standard. The holding protects agencies from retroactive ADA claims in TPR proceedings while still requiring individualization of services. For parents with disabilities, the decision confirms that extra effort and accommodations will be considered, but does not guarantee success if the parent is unwilling to engage with services or make necessary changes.
The decision is also significant for clarifying the doctrine of waiver: appellate courts will not invent legal theories on a parent’s behalf if counsel fails to preserve issues at trial. Gwen’s lengthy appellate brief devoted substantial space to ADA history and theory, but because the ADA was never mentioned in the circuit court, the entire line of argument was foreclosed. This underscores that appellate courts are courts of review, not courts of first impression, and that litigants bear responsibility for raising and developing arguments at the trial level.