Dane County Department of Human Services v. P. P.

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2005 WI 32 - SUPREME COURT CASE NO.: OF WISCONSIN 03-2440, 03-2441, 03-2442, 03-2443, 03-2444, 032445, 03-2446 COMPLETE TITLE: In re the Termination of Parental Rights to Diana P., Channa P., Rattanck P., Dara P., Rothana P., Daer P., and Ericka P., Persons Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. Ponn P., Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 269 Wis. 2d 892, 675 N.W.2d 811 (Ct. App. 2004-Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 9, 2004 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Daniel R. Moeser JUSTICES: CONCURRED: DISSENTED: March 23, 2005 PROSSER, J., concurs (opinion filed) ROGGENSACK, J., concurs (opinion filed) ABRAHAMSON, C.J., dissents (opinion filed) BUTLER, J., joins the dissent. BUTLER, J., dissents (opinion filed) ABRAHAMSON, C.J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis. For the petitioner-respondent there was a brief and oral argument by Maureen A. Plunkett, assistant corporation counsel. An amicus curiae brief was filed by Scott Horne, LaCrosse, on behalf of the Wisconsin District Attorney s Association; E. Michael McCann, Milwaukee, on behalf of the Milwaukee County District Attorney s Office; and Elisabeth Mueller, Wauwatosa, on behalf of the Milwaukee County District Attorney s Office. 2 2005 WI 32 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 03-2440, 03-2441, 03-2442, 03-2443, 03-2444, 03-2445 & 03-2446 (L.C. Nos. 02 TP 107, 02 TP 108, 02 TP 109, 02 TP 110, 02 TP 111, 02 TP 112 & 02 TP 113) STATE OF WISCONSIN : IN SUPREME COURT In re the Termination of Parental Rights to Diana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. FILED MAR 23, 2005 Cornelia G. Clark Clerk of Supreme Court P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Channa P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. No. In re the Termination of Parental Rights to Rattanck P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Dara P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Rothana P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. 2 03-2440 thru 03-2446 No. 03-2440 thru 03-2446 In re the Termination of Parental Rights to Dera P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. In re the Termination of Parental Rights to Ericka P., a Person Under the Age of 18: Dane County Department of Human Services, Petitioner-Respondent, v. P.P., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 that PATIENCE P.P.'s DRAKE parental ROGGENSACK, rights were J. Affirmed. Because terminated by we conclude use of a statutory scheme that requires a showing of unfitness before termination of parental rights can occur, that such a showing was made and that P.P. did not contest the validity of the order 3 No. 03-2440 thru 03-2446 that formed the basis for the State's petition, we affirm the decision of the court of appeals. I. ¶2 This case arises BACKGROUND out of a petition by Dane County Department of Human Services (DCDHS) to terminate the parental rights of P.P. to seven minor children, Ericka P., Diana P., Channa P., Rattanck P., Dara P., Rothana P., and Dera P. (collectively "the children"), and an order for termination, the Honorable Daniel R. Moeser, presiding.1 The children currently range in age from 17 to 6. ¶3 County human services agencies first became involved with the family in 1988, based on allegations of physical abuse of the children in Rock County. custody of the children and In 1990, Rock County took placed them in foster care. Visitation was suspended in October 1991, and P.P. did not have any contact with his children between October 1991 and October 1992. The children were later returned to their parents' home, against the recommendation of Rock County Human Services. ¶4 became The family moved to Madison in February 1994. involved in April 1994. In March 2001, one children disclosed that P.P. had sexually assaulted her. DCDHS of the DCDHS subsequently substantiated reports that P.P. had sexually abused one of the children and that both parents had physically abused 1 The mother's parental rights have been terminated, and she is not a party to this review. 4 No. and neglected all of the children. 03-2440 thru 03-2446 P.P. was arrested, and the children were placed in foster care on March 21, 2001. ¶5 The children were determined to be in protection or services (CHIPS) on July 18, 2001. need of On August 12, 2002, DCDHS filed a petition for termination of parental rights. The petition termination § 48.415(1), alleged of (2) that P.P.'s and grounds parental existed rights (2001-02)2 (6) for under based involuntary Wis. on Stat. abandonment, continuing need of protection or services, and failure to assume parental responsibility, respectively. ¶6 In the meantime, P.P. pled guilty to felony abuse and was in prison until November 12, 2002. child Upon release, he lived in a halfway house for about three months, and then he was taken into custody by federal immigration authorities. ¶7 petition ground On for for March 4, 2003, termination involuntary DCDHS of filed parental termination an amendment rights, stated to its restating the in Wis. Stat. § 48.415(2), "Continuing need of protection or services," and adding § 48.415(4), "Continuing denial of periods of physical placement or visitation." made two allegations. Regarding the latter ground, DCDHS First, it alleged that P.P. was denied visitation with the children, pursuant to a February 27, 2002 Dane County Circuit Court order required by Wis. Stat. § 48.356(2). 2 that contained the notice Second, DCDHS alleged, "As All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. 5 No. of February 28, order denying [2]003, at least visitation. one The year court 03-2440 thru 03-2446 elapsed has not since the subsequently modified its order so as to permit visitation." ¶8 On April 16, 2003, requested a jury trial. P.P. denied the allegations and However, on June 2, 2003, P.P. entered a no contest plea to the DCDHS allegations establishing grounds for termination of parental rights under Wis. Stat. § 48.415(4) and waived his right to a trial. a factual basis for his plea. stated that it would place P.P. stipulated that there was The court accepted his plea and in the record the earlier court orders and their underlying factual findings denying visitation. They would provide a factual basis for the ground pled to by P.P. Only one order, the one signed October 31, 2002 from an August 12, 2002 hearing, is found in the record with P.P.'s signed no contest plea and waiver statement. ¶9 The October 31, 2002 order, which revised and extended a prior dispositional order, required that the parents have no contact, either direct or indirect, with the children and denied the parents visitation. P.P.'s home that It set out in detail the conditions in required no contact by the parents. For example, it explained that the children had been removed from their parents' home because "[r]eports of physical and sexual abuse of the children by both parents" had been substantiated and reports of "severe neglect of the children by both parents" had also been substantiated. The order that formed the factual basis for the plea to Wis. Stat. § 48.415(4) also established 6 No. that "[n]o known services could ensure 03-2440 thru 03-2446 the safety of the children in the parental home." ¶10 The October 31, 2002 order also established that the following conditions had to be met before the parents could be granted visitation: A. Each parent must participate in individual therapy until such time that the children's therapists, in consultation with the parent's therapists, believe[] that the children can be physically and emotionally safe with the parent in any setting for visitation; B. Each parent must demonstrate a 3 month period of sobriety, as determined by the Court, and submit all requested samples for urinalysis. Failure to submit a sample for urinalysis shall be considered the same as a test result indicating the presence of controlled substances or alcohol in the parent's urine; C. Each parent must sign each and every consent for release of information that is requested by the assigned social worker; D. ¶11 On Each parent must not be incarcerated. June 10, 2003, the court held a dispositional hearing to determine whether the parents' parental rights should be terminated. The court heard testimony from a DCDHS social worker, who had prepared a report for the court, and from P.P. The court then adopted the facts and conclusions of the social worker's report, which detailed the following: the parents' mental health and substance abuse issues; the extreme physical abuse, sexual abuse, and neglect of the children; the children's fear of their parents, including their legitimate fear that their father would kill them; the children's desire never to 7 No. return to behavioral their parents' problems the home; children the 03-2440 thru 03-2446 health, continue to emotional and experience; the services offered and provided to the parents; and the children's continuing need for foster care placement, despite the intensive provision of services. ¶12 The court noted that the children had been subject to "egregious" physical, mental and sexual abuse and that DCDHS had provided services to the parents and despite those services, conditions had not been met to return the children to their parental home. The court also noted that the children had been separated from both parents for the prior 26 or 27 months. The court explained that termination of parental rights was in the best interests of the children, six of whom were likely to be adopted and the eldest of whom would be living safely with a guardian. The relationships court with stated their that parents severing would be the children's beneficial to the children and that the children had strong relationships with caregivers in their current placements. In addition, the court explained that DCDHS had made reasonable, even extraordinary, efforts to prevent removal. pursuant to Wis. Stat. The court found the parents unfit § 48.424(4) and entered an order terminating parental rights to all the children. ¶13 P.P. appealed, and the court of appeals affirmed. P.P. then filed a petition for review, which we granted. 8 No. II. A. 03-2440 thru 03-2446 DISCUSSION Standard of Review ¶14 Whether a statute is constitutional question of law that we review de novo. presents a State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328. B. Facial Constitutional Challenge ¶15 Wis. P.P. raises a substantive due process challenge3 to Stat. § 48.424(4) because that statute provides that a finding under Wis. Stat. § 48.415(4) is sufficient to prove that a parent is unfit. Such a challenge may be raised based on the assertion that the statute is unconstitutional as applied, see Monroe County Department of Human Services v. Kelli B., 2004 WI 48, ¶1, 271 Wis. 2d 51, 678 N.W.2d 831, or that the statute is facially unconstitutional, see State v. Rachel, 2002 WI 81, ¶1, 254 Wis. 2d 215, 647 N.W.2d 762. Here, P.P. makes a facial challenge, but not an as-applied challenge. 3 He contends that P.P. does not tell us whether he bases his challenge solely on a fundamental liberty interest that is secured by the Due Process Clause of the United States Constitution or whether there is a state constitutional issue involved too. However, he cites only federal law to identify the fundamental liberty interest he claims the State violated. Accordingly, we conclude that the Fourteenth Amendment to the United States Constitution is the foundation for his argument. The Due Process Clause of the Fourteenth Amendment has been held to protect certain unstated fundamental rights, including those relating to parent/child relationships. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (instructing that it is only when a parent has a substantial relationship with his or her child that he or she has a fundamental liberty interest in the society and companionship of the child that is protected by the Due Process Clause of the Fourteenth Amendment). 9 No. 03-2440 thru 03-2446 the statute is an invalid rule because it is so sweeping that it may be used to terminate parental rights without a finding of parental unfitness, as is required by Stanley v. Illinois, 405 U.S. 645 (1972). ¶16 Generally, constitutional. a challenged statute is presumed to be Cole, 264 Wis. 2d 520, ¶11; Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 20, 580 N.W.2d 156 (1998); State v. Konrath, 218 Wis. 2d 290, 302, 577 N.W.2d 601 (1998). This presumption is based on our respect for a co-equal branch of government legislative and is acts. meant to 264 Cole, promote Wis. 2d due 520, deference ¶18. "[E]very presumption must be indulged to sustain the law." Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602 to Jackson v. (1998); accord Cole, 264 Wis. 2d 520, ¶11. ¶17 The court constitutionality must of a resolve statute in any doubt favor of about upholding the its constitutionality. Kelli B., 271 Wis. 2d 51, ¶16; Cole, 264 Wis. 2d 520, ¶11. Further, "'[g]iven a choice of reasonable interpretations a construction of which statute, results in this court must select constitutionality.'" the American Family Mut. Ins. Co. v. Wisconsin Dep't of Revenue, 222 Wis. 2d 650, 667, Strykowski 586 v. N.W.2d Wilkie, 872 81 (1998) Wis. 2d (quoting 491, 526, State 261 ex N.W.2d rel. 434 (1978)). ¶18 bears a A party heavy constitutionality. challenging burden to a statute's overcome the constitutionality presumption of Dowhower v. West Bend Mut. Ins. Co., 2000 WI 10 No. 03-2440 thru 03-2446 73, ¶10, 236 Wis. 2d 113, 613 N.W.2d 557. Therefore, it is insufficient for the party challenging the statute to establish either that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Cole, 264 Wis. 2d 520, Instead, ¶11; Jackson, 218 Wis. 2d at 853. a party challenging a statute's constitutionality must demonstrate that the statute Cole, 264 is unconstitutional Wis. 2d 520, ¶11; Konrath, 218 Wis. 2d at 302. evidentiary burden of proof beyond reasonable 218 Jackson, a Wis. 2d doubt. at 853; While this language implies the most commonly used for factual determinations in a criminal case, in this context, the phrase, "beyond a reasonable doubt," establishes the force or conviction with which a court must conclude, as a matter of law, that a statute is unconstitutional application can be set aside. before the statute or its See Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, ¶4 n.3, 240 Wis. 2d 559, 623 N.W.2d 776. C. Substantive Due Process ¶19 P.P.'s constitutional challenge to § 48.415(4) is based on substantive due process.4 substantive government due may v. process do to State, addresses people 193 under Wis. 2d "the the The right to content guise 307, Stat. of 533 of what the law." Reginald D. (1995). It protects against governmental action that either 4 299, Wis. N.W.2d 181 The Due Process Clause of the Fourteenth Amendment of the United States Constitution provides in part that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. See also Wis. Const. art. 1, §§ 1 and 8. 11 No. 03-2440 thru 03-2446 "shocks the conscience . . . or interferes with rights implicit in the concept of ordered liberty." State v. Jorgensen, 2003 WI 105, ¶33, 264 Wis. 2d 157, 667 N.W.2d 318 (quotation omitted); see also State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784. against The right of substantive due process protects a state act that is arbitrary, wrong or oppressive, regardless of whether the procedures applied to implement the action were fair. Kelli B., 271 Wis. 2d 51, ¶19 (citation omitted). ¶20 The threshold inquiry here is fundamental liberty interest at stake. 236 Wis. 2d 113, ¶14. that he children. has whether P.P. has a Id., ¶20; see Dowhower, DCDHS does not contest P.P.'s assertion a fundamental liberty interest in parenting his Therefore, any statute that impinges on that right must withstand strict scrutiny. Kelli B., 271 Wis. 2d 51, ¶24. In scrutiny, order to withstand strict a statute must narrowly tailored to meet a compelling state interest. ¶25. be Id., Here, the compelling state interest is to protect children from unfit parents. Id. Accordingly, the statutory scheme at issue must be narrowly tailored to advance the State's interest in protecting children from unfit parents. See id., ¶17; Winnebago County Dep't of Soc. Servs. v. Darrell A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995). ¶21 The legislature has explained that state interest includes a temporal component. this compelling For example, in explaining its legislative purposes for enacting the Children's 12 No. 03-2440 thru 03-2446 Code, of which Wis. Stat. § 48.415(4) is a part, the legislature provided that: [t]he courts and agencies responsible for child welfare should . . . 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. Wis. Stat. § 48.01(a) (emphasis added). The legislature further explained that one of the Children's Code's purposes is "[t]o promote the adoption of children into safe and stable families rather than allowing children to remain in the impermanence of foster . . . care." D. Wis. Stat. § 48.01(1)(gg). Narrowly Tailored Statutory Scheme ¶22 This § 48.424(4), case which requires provides us that a to examine finding under Wis. Stat. Wis. § 48.415(4) is sufficient to prove a parent is unfit.5 Stat. Because findings under § 48.415(4) are not possible without significant earlier findings, our examination must focus more broadly than simply on the specifically challenged statutes. Accordingly, we review the underlying statutory scheme, as well. ¶23 We begin where P.P. has, with the requirements of Wis. Stat. § 48.415(4), which provides that a "[continual] denial of periods of physical placement or visitation" is a ground for 5 A parent's fundamental right to the care and society of his or her child may not be terminated absent a finding that the parent is unfit. Stanley v. Illinois, 405 U.S. 645, 649 (1972). 13 No. terminating parental rights. A finding 03-2440 thru 03-2446 under § 48.415(4) requires that all of the following must be proved: (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2). (b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation. Wis. Stat. § 48.415(4). ¶24 Having explained above that Wis. Stat. § 48.415(4) serves a compelling state interest, we next determine whether § 48.415(4) is narrowly tailored to advance this interest. asserts that because "it unfitness." § 48.415(4) does not violates require substantive any evidence due of P.P. process parental It is his contention that no-contact orders denying physical placement or visitation, such as have been in effect here, are based on the "best interest of the child," pursuant to Wis. Stat. § 48.355(3), rather than on a finding that the parent is unfit. Therefore, he contends that because these orders are the sole basis for a finding that grounds exist for terminating his parental rights pursuant to § 48.415(4), the statute is not narrowly tailored to meet a compelling state interest and violates his substantive due process right. ¶25 At oral argument, P.P. also argued that Wis. Stat. § 48.415(4) should require the court to make a finding as to the 14 No. 03-2440 thru 03-2446 reasons a parent failed to have the order modified during the one year, or more, when it has been in effect. However, § 48.415(4) is not facially invalid on this basis because we do not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. no contest to the ground asserted to However, P.P. pled terminate his parental rights, and in so doing, he relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children. Accordingly, we do not reach the question of whether an as-applied challenge to the validity of a § 48.415(4) order will lie.6 ¶26 Further, in regard to the statutory scheme being narrowly tailored, DCDHS and the amicus curiae argue that there 6 In his brief, P.P. cites Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, for the proposition that there is "no defense to § 48.415(4) based on [a] parent's explanation for noncompliance with the order." However, the Steven V. decision was grounded in procedural due process rights, not a substantive due process right. Steven V., 271 Wis. 2d 1, ¶¶23, 40 n.6. Thus, in Steven V., we were not addressing whether Wis. Stat. § 48.415(4) was narrowly tailored sufficient to satisfy substantive due process in an individual case. See id. Here, P.P.'s constitutional challenge is based on substantive due process grounds. Had he chosen to raise a defense to the ground set out in § 48.415(4) in circuit court, he may have put himself in a position to raise an as-applied challenge to § 48.415(4) on a substantive due process basis on appeal. However, he chose to plead no contest to the petition to terminate his parental rights, thereby admitting the ground alleged. However, neither Steven V., nor this decision, forecloses the possibility of an as-applied substantive due process challenge to § 48.415(4) in the future. 15 No. are required application steps of that Wis. must Stat. be taken § 48.415(4) 03-2440 thru 03-2446 before in a reaching termination the of parental rights case and those steps form the foundation for the ultimate finding in subsection (4). step-by-step process: They cite the following (1) there is an initial decision to hold a child in governmental custody; (2) if the child is held in custody, then there must be a factual determination that the child is in need of protection or services before the next step will be reached; (3) if a child is found in need of protection or services, then the decision about whether to place the child outside the parental home is made; (4) if the child is placed outside the home, only after finding that parent child visitation or physical placement would be harmful to the child may a parent be denied visitation and physical placement; and (5) if an order denying visitation and physical placement is entered, it must contain conditions that when met will permit the parent to request visitation or periods a of revision physical of the placement. order to DCDHS afford and the amicus curiae submit that at each of these steps, findings must be made that reflect on the parent's fitness. We agree that the statutory step-by-step process that underlies § 48.415(4) is sufficient to show that subsection (4) is narrowly tailored to advance the State's compelling interest of protecting children against unfit parents, and to demonstrate this, we outline how this scheme was applied in P.P.'s case. ¶27 In the first step, a petition was filed, alleging probable cause to believe that the children were in need of 16 No. protection or services (CHIPS). abuse of the children. 03-2440 thru 03-2446 It claimed neglect and severe The children were placed in foster care on March 21, 2001, after P.P.'s arrest for sexually assaulting one of the children.7 ¶28 Because the children were not released after they were initially taken into custody,8 a hearing was held to find whether the children should remain in custody, based upon whether probable cause existed, sufficient to prove one of the criteria listed in Wis. Stat. § 48.205(1).9 While not every ground listed at § 48.205(1) necessarily goes to a parent's unfitness, the present case would appear to fit squarely within the criteria listed at § 48.205(1)(a)-(am),10 requiring that probable cause 7 A child may which Wis. Stat. § only when there is criteria enumerated initially be held in governmental custody, 48.207(1)(c) explains includes foster care, probable cause to believe that one of the under Wis. Stat. § 48.205(1) exists. 8 Wisconsin Stat. § 48.205(1) provides that an intake worker determine whether a child may be held based on probable cause to believe that the child is within the court's jurisdiction and probable cause to believe that one of several enumerated grounds exists. These grounds include concerns for the safety of the child. 9 This hearing must be held within 48 hours of the decision to hold a child, exclusive of Saturdays, Sundays and legal holidays. Wis. Stat. § 48.21(1)(a). 10 Wisconsin Stat. 48.205(1)(am) state: §§ 48.205(1), 48.205(1)(a), (1) A child may be held under s. 48.207(1) . . . if the intake worker determines that there is probable cause to believe the child is within the jurisdiction of the court and: 17 and No. 03-2440 thru 03-2446 exists that the child will be subject to injury if not held in governmental custody. There is nothing in the record to indicate that P.P. contested the determination that his children be placed outside his home for their safety. ¶29 P.P.'s children were adjudicated CHIPS on July 18, 2001, which required that a fact-finding hearing have been held under Wis. Stat. § 48.31. parents be determination provided may not Wisconsin Stat. § 48.27 requires that notice be of made the unless hearing. one described in Wis. Stat. § 48.13 is found. of A the 14 CHIPS grounds Each of those grounds defines some type of parental abandonment, abuse, neglect, or inability to care for the child. These allegations have to be proven by clear and convincing evidence. Wis. Stat. § 48.31(1). Again, the record does not indicate that P.P. challenged the factual findings that were made. ¶30 P.P.'s children remained in foster care after the CHIPS adjudication, due to a subsequent dispositional hearing held pursuant to Wis. Stat. § 48.335. At the dispositional hearing in a CHIPS case, the court may order that placement of a child be transferred outside the parental home "only when there (a) Probable cause exists to believe that if the child is not held he or she will cause injury to himself or herself or be subject to injury by others. (am) Probable cause exists to believe that child is not held he or she will be subject to by others, based on a determination under par. a finding under 48.21(4) that if another child home is not held that child will be subject to by others. 18 if the injury (a) or in the injury No. is no less drastic alternative." 03-2440 thru 03-2446 Wis. Stat. § 48.355(1). A dispositional order that places a child outside the home must contain a finding that placing the child in the parental home would be "contrary to the welfare of the child" and, unless limited circumstances exist that are not present in this case, a finding that the relevant social service agency made reasonable efforts to prevent the child's removal from the home. Stat. § 48.355(2)(b)6. revised children and extended were Wis. In P.P.'s case, the October 31, 2002 dispositional removed from their order indicated parents' home that because the of physical and sexual abuse by P.P. and severe neglect by both parents. The order also required that the name and address of each child's placement be withheld from P.P., which may be done only if the court finds that such a disclosure would result "in imminent danger" to the § 48.355(2)(b)2. child or foster parents, Wis. Stat. While Justice Butler's dissent is correct that this finding was made during a hearing where the best interest of the child is the controlling standard, Justice Butler's dissent, ¶88, it was also grounded in a lack of fitness on the part of P.P. Here, the finding was based on P.P.'s sexual assault and extreme abuse of his own children. Therefore, this finding supports the ultimate determination that P.P. was an unfit parent. However, once again, the record does not indicate that P.P. contested these determinations. ¶31 Because an out-of-home placement of the children was ordered, the issue of parental visitation arose. Except under enumerated circumstances, a visitation determination may be made 19 No. 03-2440 thru 03-2446 only after a hearing with due notice to the parent. Wis. Stat. § 48.355(3). The court has the discretion, based on the best interests the of child, to set reasonable rules parental visitation within the dispositional order. § 48.355(3)(a). In the present case, the court regarding Wis. Stat. denied P.P. visitation with the children, and the court provided conditions that had to be met before visitation could be granted. Under Wis. Stat. § 48.363(1)(a), a parent may request a revision of the dispositional order, which would include a revision of the court-imposed rules regarding visitation. show that P.P. contested the denial of The record does not visitation or the conditions imposed, or that he moved the court to revise these visitation rules.11 ¶32 Only after all the above described steps took place, was P.P. faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under fitness. § 48.415(4) involve an evaluation of a parent's It is the cumulative effect of the determinations made 11 One of the conditions for the resumption of visitation was that P.P. not be incarcerated. Justice Butler's dissent asks, "Will this now become an independent ground to terminate the rights of parents convicted of felonies with sentences in excess of a year?" Justice Butler's dissent, ¶91 n.8. The grounds for termination are established by the legislature. However, the order requiring that a parent not be incarcerated is set by a court; this same court can modify that order on the motion of a parent. Wis. Stat. § 48.363(1)(a). 20 No. 03-2440 thru 03-2446 at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The implementation full of statutory § 48.415(4) scheme must that be precedes evaluated as the well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State's compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children's welfare through stability and permanency in their lives. In our view, P.P. has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty. ¶33 Further, the application of Wis. Stat. § 48.415(4) to P.P.'s case demonstrates that there is at least one possible interpretation and application of the statute that is constitutional, as we have described above, in its application to P.P. Accordingly, we have been provided with further evidence that § 48.415(4), on its face, is not unconstitutional beyond a reasonable doubt. See Cole, 264 Wis. 2d 520, ¶30 (concluding that when there is an application or interpretation 21 No. of the statute that is constitutional, 03-2440 thru 03-2446 the statute is not unconstitutional on its face). ¶34 P.P. had multiple opportunities to contest the determinations made at each fact-finding stage in the statutory scheme that was employed in advance of the termination of his parental rights. steps. He chose not to contest any of these predicate Instead, he pled no contest to the allegation that Wis. Stat. § 48.415(4) provided a ground for terminating his parental rights. Accordingly, the record supports the conclusion of Wis. Stat. § 48.424(4) that P.P. is an unfit parent. III. ¶35 CONCLUSION Because we conclude that P.P.'s parental rights were terminated by use of a statutory scheme that does require a showing of unfitness before termination of parental rights can occur, that such a showing was made and that P.P. did not contest the validity of the order that formed the basis for the State's petition, we affirm the decision of the court of appeals is appeals. By the Court. The decision affirmed. 22 of the court of No. 03-2440 thru 03-2446.dtp ¶36 agree DAVID T. PROSSER, J. with the analysis in I substantially (concurring). the majority opinion. I write separately to address the two dissents and to disavow judicial efforts to tamper with the termination of parental rights (TPR) statutes. I. BACKGROUND ¶37 In his brief, the petitioner states the issue as whether Wis. Stat. § 48.415(4) is unconstitutional on its face "because it does not require any evidence of parental unfitness," and this hypothesis attracts the two dissents. In my view, the hypothesis is mistaken because the statutory scheme is designed to expose and establish parental unfitness. ¶38 In Wisconsin, the definition of "unfitness" is not up for interpretation on a case-by-case basis. The legislature has defined unfitness by establishing multiple statutory "grounds" for the termination Wis. Stat. § 48.415. of parental rights. See These grounds include abandonment, child abuse, failure to assume parental responsibility, and commission of a serious felony against one of the parent's children. Some of the grounds in the statute, such as child abuse, are selfevident; others require close examination of the requisite elements in the context of the overall statutory scheme. ¶39 The termination of P.P.'s parental rights was based on Wis. Stat. § 48.415(4), "Continuing Physical Visitation." Placement or Denial The of Periods majority of opinion carefully explains the basis for this ground and the elements that the government must prove at a fact-finding hearing. 1 The No. 03-2440 thru 03-2446.dtp opinion correctly observes that "findings under § 48.415(4) are not possible without significant earlier findings," majority op., ¶22, and it recounts the steps leading up to the factfinding hearing on that ground. ¶40 See Wis. Stat. § 48.424. The record in this case illuminates the basic points of government interaction with a parent prior to a termination proceeding. ¶41 A TPR case usually unfolds in the following manner. First, a child is taken into custody under a judicial order made upon a satisfactory showing that "the welfare of the child demands that the child be immediately removed from his or her present enforcement custody," Wis. Stat. § 48.19(1)(c), officer grounds . . . that who [t]he "believes child is or on suffering by a law reasonable from illness or injury or is in immediate danger from his or her surroundings and removal from those Wis. Stat. § 48.19(1)(d)5. surroundings The person is taking necessary." the child into custody "shall immediately attempt to notify the parent," and this effort must be continued by one person or another until the parent is notified. Wis. Stat. § 48.19(2). The parent is told of the reasons for holding the child in custody and informed of the time and place Wis. Stat. § 48.20(8). The of parent a is detention told of the hearing. possible consequences of that hearing and of the right to present and cross-examine witnesses. Id. The purpose of notification is to alert the parent to the forthcoming opportunity to review and dispute government action. 2 No. 03-2440 thru 03-2446.dtp ¶42 Second, the court conducts a detention hearing for a child in custody. by a petition Wis. Stat. § 48.21. that identifies the This hearing is preceded purpose of the hearing, especially a claim that the child is in need of protection or services. Wis. Stat. § 48.21(3). At the hearing, the court must find probable cause to continue custody on one of the bases listed in Wis. Stat. § 48.205. Wis. Stat. § 48.21(4). "Reasonable restrictions may be placed upon the conduct of the parent . . . which may be necessary to ensure the safety of the child." Wis. Stat. § 48.21(4)(a). A judicial decision to maintain custody of the child must list the reasons and criteria forming the basis for the decision and a finding "that continued placement of the child in his or her home would be contrary to the welfare of the child." ¶43 Third, the Wis. Stat. § 48.21(5)(a) and (b)1. court eventually holds a more complete fact-finding hearing to determine whether the allegations in the petition that a child is in need of protection or services are proved by clear and convincing evidence. The child's parent may demand a Wis. Stat. § 48.31(1). jury for this hearing. Wis. Stat. § 48.31(2). ¶44 Fourth, if the fact-finder determines by clear and convincing evidence at the fact-finding hearing that the child is in need of protection or services, the court then conducts a "dispositional" hearing to determine disposition. Wis. Stat. § 48.335(1). This hearing follows the preparation of a that court-ordered court from an report appropriate provides agency. 3 recommendations to Wis. Stat. § 48.33. the The No. 03-2440 thru 03-2446.dtp report must address, in detail, any that the Wis. Stat. § 48.33(4). child be placed outside the home. recommendation At the dispositional hearing, the parent may present evidence to challenge the recommendations. ¶45 recommendation and may make alternative Wis. Stat. § 48.335(3). Fifth, the Wis. Stat. § 48.345. court If makes a the government disposition. shows that the rehabilitation or treatment of the child "cannot be accomplished by means of voluntary consent of the parent," the court may transfer custody department, of or the a Wis. Stat. § 48.345(4). child to licensed a relative, child a welfare county agency. "When appropriate . . . the family unit shall be preserved and there shall be a policy of transferring custody of a child from the parent . . . only where there is no less drastic alternative." ¶46 Sixth, a Wis. Stat. § 48.355(1). disposition order shall include written findings of fact and conclusions of law based on the evidence presented to the court. is placed outside the Wis. Stat. § 48.355(2). home, the court shall If the child make a written finding "that continued placement of the child in his or her home would be contrary Wis. Stat. § 48.355(2)(b)6. to the welfare of the child." "The court shall make the findings specified in this subdivision on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order." Id. 4 No. 03-2440 thru 03-2446.dtp ¶47 finding Seventh, in most circumstances, the court must make a that the government agency responsible for providing services under a court order "has made reasonable efforts to prevent the removal of the child from his or her home, while assuring . . . the child's health and safety," or has made reasonable efforts to achieve the goal of the child's permanency plan. That goal may be to return the child to the home. Id.; Wis. Stat. § 48.355(2c). ¶48 Eighth, when a child is placed outside the home, the court may deny or limit visitation. and § 48.356(1). The basis for Wis. Stat. § 48.355(2c)(b), this determination must be explained. ¶49 child Ninth, the court has a duty to warn the parent of a placed outside the home of any potential grounds for termination of parental rights under Wis. Stat. § 48.415 "and of the conditions necessary for the child . . . to be returned to the home or for the parent to be granted visitation." Wis. Stat. § 48.356(1). II. APPLICATION ¶50 In this case, the county settled on "Continuing Denial of Periods of Physical Placement or Visitation" as the ground on which it sought termination Wis. Stat. § 48.415(4).12 12 of P.P.'s parental rights. This statute provides that a parent is Wisconsin Stat. § 48.415(4) provides: (4) Continuing Denial of Periods of Physical Placement or Visitation. Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following: 5 No. 03-2440 thru 03-2446.dtp unfit (1) if the parent has been denied physical placement of the child or visitation with the child by court order; (2) at least one year has elapsed since the court issued the order; and (3) the court has not modified the order so as to permit periods of physical placement or visitation. ¶51 As noted in ¶¶41-49, Wis. Stat. § 48.415(4). the steps petition under § 48.415(4) are elaborate. leading above parental rights, finding preceded and hearing the all on petition steps the would to a P.P. does not contend that these steps were not followed in his case. outlined up to have termination All steps terminate preceded petition P.P.'s a factunder Wis. Stat. § 48.424, if P.P. had not entered a no contest plea and admitted the asserted ground. ¶52 parent It to should notice be of obvious virtually that the every statutes step in entitle the a lengthy proceedings. The statutes also afford a parent the right to challenge court in a child's continued custody, a child's placement outside the home, and any restrictions on the parent's visitation. P.P. does not allege that the government failed to inform him of any step in the proceedings, or prevented him from (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356(2) or 938.356(2). (b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation. 6 No. 03-2440 thru 03-2446.dtp challenging government action at any point. He did not invoke his right to a jury trial when that right was afforded; he failed to ask for reconsideration or modification of any judicial order; and he did not seek judicial review. ¶53 If a parent fails to exercise his or her rights to challenge government action, how can the parent complain that an unchallenged court-ordered separation of parent and child for at least a year unfitness? does not provide evidence of the parent's The reasons for the separation are in the record, and the failure to seek a change in circumstances is proof of the parent's unfitness.13 The parent has no legitimate complaint unless point the parent deficiency such as can a failure to to some provide specific timely procedural notice, some fundamental unfairness in a condition set by the court, or some excusable error, explainable inadvertence, or impossibility in making a timely challenge placement or visitation. or in meeting the conditions for A year is a long time for a fit parent to do nothing. ¶54 If a parent has in fact exercised his or her right to challenge one or more of the prior judicial determinations, then the record will show why those efforts did not succeed. 13 Chief Justice Abrahamson's dissent states that this concurrence "infers" a finding of unfitness. Chief Justice Abrahamson's dissent, ¶73. This is not correct. In Wis. Stat. § 48.415 the legislature has explicitly defined the grounds meriting a finding of unfitness, and the circuit court explicitly found P.P. unfit under § 48.415(4) after he pled no contest. Having made a finding in line with the statute, the circuit court had no obligation to make a duplicative finding of unfitness apart from the statute. 7 No. 03-2440 thru 03-2446.dtp ¶55 The statutory safeguards. As the scheme majority is replete opinion with explains, entitled to parental involvement and support. procedural a child is The legislature has determined that a parent's unwillingness or inability to be involved with a child, after a necessity-based court order to separate the child from the parent, is compelling evidence of the parent's unfitness. III. STATUTORY INTERPRETATION ¶56 The statutory scheme is sound. What is troublesome are judicial interpretations that (1) deprive a parent of the right to a jury trial in circumstances where a circuit judge determines that no material facts are in dispute; or (2) preclude the parent from ever offering any factual defense at the fact-finding hearing on a § 48.415(4) ground. ¶57 The first concern was discussed in my dissent in Steven V. v. Kelley H., 2004 WI 47, ¶¶63-100, 271 Wis. 2d 1, 678 N.W.2d 856 (Prosser, J., dissenting). had the grounds right for to a jury termination trial of at parental My view was that a parent the hearing rights, to not establish because the constitution requires it but because the legislature had always made the fundamental otherwise, right part this to trial of the court by jury prescribed disregarded in termination procedure. more than To a cases a conclude century of statutory law and overruled Walworth County Department of Human Services v. Elizabeth W., 189 Wis. 2d 432, 525 N.W.2d 384 (Ct. App. 1994). 8 No. 03-2440 thru 03-2446.dtp ¶58 dissent The second concern was also discussed in my Steven V. at ¶¶93-98. determinations court could orders." Justice added The conclusively Steven in majority her V., 271 concurrence concluded flow from the unfitness "certain Wis. 2d 1, that that ¶39. existing The Chief termination court could not consider reasons why the disposition court did not modify an order denying placement or visitation. Steven V., 271 Wis. 2d 1, ¶56 (Abrahamson, C.J., concurring). ¶59 There appears to be a relationship between summary judgment replacing trial by jury and the court-created barrier to offering a factual defense to a § 48.415(4) ground. It is much easier to deny a jury trial on the basis that no material facts are legislature in dispute has insisted when one that a first court concludes may not that the consider any facts, explanations, or defenses to a § 48.415(4) ground "to defeat the determination of unfitness once [that] ground has been found." Of Id. course, I disagree with this interpretation of the legislature's intent. ¶60 As I see it, if a parent is able to show a fundamental flaw in the procedure leading up to a termination petition under § 48.415(4), the parent must have an opportunity to bring that flaw to the attention of the termination court before the court or jury makes a finding on this ground for unfitness. If a parent is able to show that it was impossible or completely unreasonable to comply with the court order, the parent must have an provide opportunity such an to present opportunity is 9 that not evidence. only unfair Failure but to also No. 03-2440 thru 03-2446.dtp implicates the parent's due process right to present a defense. Washington v. Texas, 388 U.S. 14, 19 (1967); see also State v. Heft, 185 Wis. 2d 288, 303, 517 N.W.2d 494 (1994). While it is true afforded that the "strict constitutional safeguards to criminal defendants are not applicable to civil cases," basic due process rights often apply in civil proceedings. Am. v. Gore, 517 U.S. 559, 574-75 n.22 (1996) BMW of N. (protection against judgment without notice applies in civil proceedings); Reed v. Cleveland Bd. of Educ., 607 F.2d 749, 750 (6th Cir. 1979). The Supreme Court has also characterized the due process right as "an opportunity to be heard at a meaningful time and in Mathews v. Eldridge, 424 U.S. 319, 333 a meaningful manner." (1976). The fact-finding hearing on unfitness is certainly a "meaningful time." ¶61 The majority apparently recognizes that a parent with a factual defense must be heard in some way because it allows the parent to bring an as-applied constitutional challenge to the statute. challenge proceeding, Majority is an the op., inadequate county convincing evidence. must ¶25 n.6. remedy. prove But At an the unfitness by as-applied termination clear and Wis. Stat. § 48.415; see also Santosky v. Kramer, 455 U.S. 745, 769-70 (1982). By contrast, in an as- applied constitutional challenge, this court "begin[s] with the presumption that the statute is constitutional and resolve[s] any doubt [in favor] of upholding its constitutionality." Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, 10 No. 03-2440 thru 03-2446.dtp ¶16, 271 Wis. 2d 51, 678 N.W.2d 831. This shift in the burden of proof is not fair to the parent.14 ¶62 The court's continued insistence on denying the parent an opportunity to present a factual defense to a § 48.415(4) petition is also bad policy. as-applied constitutional It is not good practice to invite challenges. Writing in another context, Justice Blackmun once criticized the Supreme Court's characterization of an attack on a statute as an "as-applied challenge" because, he said, "the Court risks misdirecting the litigants and the lower courts toward piecemeal litigation continuing indefinitely throughout the life of the [statute]." Bowen v. Kendrick, 487 U.S. 589, 627-28 (1988) (Blackmun, J., dissenting). I fear a similar outcome here. not encourage satellite litigation. This court should It could avoid doing so by allowing a parent to present at the termination hearing factual evidence relevant to the parent's prior failure to challenge an order denying placement or visitation rights. This evidence could be tightly screened rather than absolutely excluded. ¶63 In addition, reasonable people agree that "persons faced with forced dissolution of their parental rights have a more critical need for procedural 14 protections than do those In Monroe County Department of Human Services v. Kelli B., 2004 WI 48, ¶1, 271 Wis. 2d 51, 678 N.W.2d 831, the court held Wis. Stat. § 48.415(7) unconstitutional as applied. Part of my concern in that case was that this court made certain assumptions about the facts, relieving the parent challenging the statute of her burden of proof and disregarding the facts in the record, including the circuit court's findings. Compare the procedure outlined in State v. Hamdan, 2003 WI 113, ¶¶86-88, 264 Wis. 2d 433, 665 N.W.2d 785. 11 No. 03-2440 thru 03-2446.dtp resisting state intervention into ongoing family affairs. When the must State moves to destroy provide the parents with Santosky, 455 U.S. at 753-54. weakened familial fundamentally bonds, fair it procedures." The inconvenience if such it is of allowing the parent to present evidence why he or she could not challenge or comply with the court order pales in comparison to this fundamental right. ¶64 My interest in writing is to protect parents and to sustain the TPR statutes. Interpretations that curtail parental protections can only hurt the statutes in the long run. therefore respectfully concur. 12 I No. ¶65 PATIENCE DRAKE ROGGENSACK, J. 03-2440 thru 03-2446.pdr (concurring). While I join in the majority opinion in all respects, I write separately to explain the use of language that appears to have originated in United States v. Salerno, 481 U.S. 739 (1987), and has continued through many of Wisconsin's appellate cases where a constitutional challenge is made on a facial, rather than an asapplied, basis. We have said, "A 'facial' challenge to the constitutionality of a statute means that the 'challenger must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional.'" State v. Cole, 2003 WI 112, ¶30, 264 Wis. 2d 520, 665 N.W.2d 328.15 ¶66 A number of Wisconsin appellate opinions have described constitutional challenges that are made on a facial basis in the same way as we did in Cole. See State v. Radke, 2002 WI App 146, ¶4, 256 Wis. 2d 448, 647 N.W.2d 873; State v. Wanta, 224 Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999); State v. Ruesch, 214 Wis. 2d 548, 556, 571 N.W.2d 898 (Ct. App. 1997). However, some commentators, such as Michael Dorf, have seen the language from Salerno as imposing an impossible burden on the challenger, essentially one that cannot be met. Michael Statutes, C. 46 Dorf, Stan. Facial L. Rev. Challenges 235, See to State and Federal 236-40 (1994) (questioning whether the United States Supreme Court has consistently applied 15 State v. Cole, 2003 WI 112, ¶30, 264 Wis. 2d 520, 665 N.W.2d 328, cites State v. Wanta, 224 Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999), and Wanta cites United States v. Salerno, 481 U.S. 739, 745 (1987). 1 No. this standard from Salerno Court actually meant). and 03-2440 thru 03-2446.pdr questioning what the Supreme However, other writers question Dorf's reasoning and analysis of the language from Salerno. See Alfred Hill, Some Realism About Facial Invalidation of Statutes, 30 Hofstra L. Rev. 647, 677 (2002). ¶67 In the context of a facial challenge to the constitutionality of a statute, Wisconsin courts have echoed, or in some cases ignored, the Salerno statement, without attempting to explain what the Supreme Court requires by way of analysis when a facial provisions of challenge the to United a States statute is made Constitution.16 under the However, conclude that these differing approaches can be reconciled. I In that regard, I find persuasive Marc E. Isserles' comparison of the oft-quoted language from Salerno with the position of its critics. Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359 (1998). Isserles explains unconstitutional in all that: (1) applications claiming necessarily a statute includes is the conclusion that it is unconstitutional as applied to the party before the court; and (2) Salerno does not set out a methodology under which a court is precluded from holding that a statute is unconstitutional unless the court determines that every possible statutory application is unconstitutional; rather, Salerno is descriptive of a statute that, when examined under the relevant 16 See Cole, 264 Wis. 2d 520, ¶30, where Salerno-type language is employed, but not explained, and State v. Hamdan, 2003 WI 113, ¶¶5, 44, 264 Wis. 2d 433, 665 N.W.2d 785, where Salerno-type language is not employed and not explained. 2 No. 03-2440 thru 03-2446.pdr constitutional doctrines, but independent of particular factual applications, states an invalid rule of law. Id. at 398-407. In my view, when Salerno is seen as descriptive of the end product of a court's reasoning, rather than as a test that rigidly sets the analysis that must be undertaken, the actual tasks engaged in by a court in a facial challenge are better understood. ¶68 Therefore, the conclusion of the court that P.P. has not satisfied his burden to prove the statute unconstitutional beyond a reasonable doubt, i.e., that it is an invalid rule, is supported in part because P.P. has not shown that as to him the statute is unconstitutionally applied and in part because there is a reasonable construction of the statute as a part of a narrowly tailored statutory scheme that causes it to be a valid rule to protect children from unfit parents. ¶69 Because I believe this explanation of Salerno's oft- quoted language may help future litigants and courts analyze facial constitutional challenges, separately. 3 I have chosen to write No. ¶70 SHIRLEY S. cases make bad law. ABRAHAMSON, C.J. 03-2440 thru 03-2446.ssa Hard (dissenting). This is a hard case because P.P. is a bad actor; he was convicted of child abuse of his children. Chances are high that under the proper procedures he would be found an unfit parent. ¶71 Nevertheless, P.P., like all other parents in termination of parental rights proceedings, is entitled to due process. Due process is afforded to bad guys and good guys. That's our system. When we deviate from the requirements of due process, all parents are harmed. ¶72 parental Due process rights, a requires circuit that court before must find termination by of clear and convincing evidence that the parent is an unfit parent. In Wisconsin, the legislature requires a court to find a parent unfit on proof of a statutory ground. As I have stated previously, there may be situations when one of the statutory grounds for termination is met, but the facts do not justify a finding of parental unfitness.17 ¶73 There's the problem. The circuit court found the statutory ground was met, but the circuit court did not otherwise explicitly determine P.P. to be an unfit parent.18 Prosser's concurring opinion The majority opinion and Justice infer such an individualized finding of this parent's unfitness from the "use of a statutory 17 Steven V. v. Kelly H., 2004 WI 47, ¶54, 271 Wis. 2d 1, 678 N.W.2d 856 (Abrahamson, C.J., concurring). 18 Majority op., ¶32; Justice Prosser's concurrence, ¶53. 1 No. scheme."19 03-2440 thru 03-2446.ssa Thus the majority opinion weakly concludes that "it is the cumulative effect of the determinations made at each of the previous steps that causes the finding under § 48.415(4) to amount to unfitness."20 ¶74 No matter how you slice and dice the statutory scheme used in the present case, nowhere can be found a circuit court's finding of the parent's individualized unfitness, aside from a finding that a statutory ground has been met. ¶75 Like Justice Prosser, I too disavow judicial tampering with the TPR statutes21 in an effort to save them from being unconstitutional. The majority opinion and Justice Prosser's concurring opinion present two such examples of tampering. The majority opinion infers unfitness when there has not been an explicit finding statutory ground. engraft a of unfitness aside from a finding of a Justice Prosser's concurring opinion would requirement that parents be allowed to present "evidence relevant to the parent's prior failure to challenge an order denying placement or visitation rights" in order to ensure the constitutionality of the TPR scheme.22 P.P. was denied this opportunity under the current TPR scheme, and both the majority opinion and Justice Prosser's concurring opinion tinker with the 19 Majority ¶¶41-49, 53. op., ¶¶1, 35; Justice 20 Majority op., ¶32 (emphasis Prosser's concurrence, ¶¶41-49. Prosser's added); 21 Justice Prosser's concurrence, ¶36. 22 Justice Prosser's concurrence, ¶62. 2 see concurrence, also Justice No. TPR statutes in order to reach a 03-2440 thru 03-2446.ssa constitutionally required individualized finding of unfitness. ¶76 As I explained in my concurrence in Steven V. v. Kelley H., 2004 WI 47, ¶¶54-62, 271 Wis. 2d 1, 678 N.W.2d 856, and as the instant case further demonstrates,23 the legislature should revisit constitutionality the statutes of the to process ensure for the legitimacy terminating and parental rights.24 ¶77 With these comments, I join the dissent of Justice Louis B. Butler, Jr. ¶78 I am authorized to state that Justice LOUIS B. BUTLER, JR. joins this dissent. 23 See, e.g., majority op., ¶25 n.6, indicating other challenges to § 48.415(4) a parent may bring in the future. 24 See Wis. Stat. § 13.83(1), 13.93(2)(d). 3 No. ¶79 LOUIS B. BUTLER, JR., J. 03-2440 thru 03-2446.lbb (dissenting). The majority concludes that the record supports a finding that P.P. is an unfit parent. P.P. may actually be an unfit parent, but what he has not had is an individualized judicial determination that he is an unfit parent. Under this statutory scheme, not only is such a determination unnecessary, P.P. is now precluded from having a determination on that very issue. While this state has a compelling interest to protect children from unfit parents, Wis. Stat. § 48.415(4) is not narrowly tailored to achieve that interest. Accordingly, I dissent. I ¶80 P.P.'s On August 12, the County filed a petition to terminate parental rights, alleging abandonment, see Wis. Stat. § 48.415(1), the children were in continuing need of protection or services, see § 48.415(2), and failure to assume parental responsibility, see § 48.415(6). P.P. first appeared in court on September 6, 2002, for an initial hearing on the TPR petition, but because he does not speak or understand English, and because an interpreter did not appear, the court continued the hearing for cause. P.P. did not attend the continued initial hearing on October 2, given his incarceration in Dodge County25 and a failure to provide sufficient time to arrange for him to appear by telephone. The court again continued the hearing for cause. ¶81 On interpreter. 25 October 29, P.P. appeared by telephone with an P.P. indicated he wanted counsel, and although P.P.'s incarceration for felony child affected the decisions on how to proceed below. 1 abuse may have No. 03-2440 thru 03-2446.lbb P.P. qualified for public defender representation, he had yet to be appointed counsel due to the non-availability of private bar attorneys The in court the yet December 11. county again who accepted adjourned Meanwhile, the P.P. TPR cases was appointment for released cause cases. until from his appeared by incarceration on November 12. ¶82 At the December 11 plea hearing, P.P. counsel,26 contested the petition's allegations, and requested a jury trial. The court set a trial date for February 13 and 14, 2003. ¶83 On January 27, 2003, however, the County motioned the court to continue the trial date to February 25, asserting: It is in the interests of judicial economy to set an adjourned date for trial on the basis that trial would be greatly truncated after February 27, 2003. On February 27, 2003, one year will have elapsed since the court issued a denial of visitation for each parent which has not subsequently been modified to permit visitation. Such an occurrence will establish an additional ground for termination of parental rights to be pled. Proof to establish the ground of continuing denial of visitation, Wis. Stat. § 48.415(4), is almost perfunctory in nature, requiring only proof that the order was issued and a year has elapsed. There is no affirmative defense to this ground. (Emphasis added.) . . . . If the jury finds that the current petition was not proven, I would then file a new petition after 2/27/03, pleading the continuing denial of visitation. . . . . 26 P.P. was in a halfway house and did not attend court because his probation agent was not given enough notice to arrange for transportation. 2 No. 03-2440 thru 03-2446.lbb The requested leave to amend requires only approximately 3 weeks and would not adversely impact the interests of the public in the prompt disposition of cases. It will, in fact, enhance the interests of the public in the prompt disposition of cases as well as reduce expenses and time to the public by requiring only one day of trial. (Emphasis added.) At the continued hearing on January 29, P.P.'s counsel advised the court he explained to P.P. that even if the continuing needs ground could be defeated, the County would file this new continuing denial of visitation ground in less than a month. Counsel indicated P.P. agreed that it made sense to adjourn the trial to concurrently contest both grounds. The trial court adjourned the trial date for cause and placed the trial date outside the one-year marker to accommodate the State's impending amendment to the petition to include an allegation of continuing denial of visitation. ¶84 See Wis. Stat. § 48.415(4) On March 3, four days after the one-year anniversary of the trial court's order denying P.P. visitation rights, the County filed an amended petition, which dropped the abandonment charge, retained the allegation that the children were in continuing need of protection and services, and included the "perfunctory" continuing denial of visitation ground. A hearing on the amended petition was continued on March 11, due to the unavailability of an interpreter, and on March 25, again due to the unavailability of an interpreter and because P.P. had been taken into custody by Immigration and Naturalization Services. ¶85 On April 16, P.P.'s attorney denied petition's allegations and requested a jury trial. set a trial date for June 4. the amended The court The County represented it would be 3 No. proceeding only on the continuing 03-2440 thru 03-2446.lbb denial placement because it was the "swiftest." of visitation On June 2, P.P. pled no contest to the continuing denial of visitation ground. over one week later, the court and terminated P.P.'s Just parental rights. II ¶86 The United States Supreme emphasized the importance of family. Court has frequently The rights to conceive and to raise one's children have been deemed "essential." Nebraska, 262 U.S. 390, 399 (1923). Meyer v. The private interest of a parent in his or her children undeniably warrants deference and, absent a powerful countervailing interest, protection. v. Illinois, 405 U.S. 645, 651 (1972). Stanley A parent's fundamental right to the care and custody of his or her child may not be terminated absent a finding the parent is unfit. Id. at 649. The real question presented in this case is whether a parent can have his or her parental rights terminated in the absence of an individualized determination of unfitness through the operation of a statutory scheme that works much like a statutory presumption by the way it defines unfitness. ¶87 As P.P. points out, Wis. Stat. § 48.415(4) permits a finding of unfitness to be grounded on showing first that a court order denying visitation or physical placement has been issued and, second, that such order has been in effect for at least one physical 27 year without placement.27 modification permitting visitation Wisconsin Stat. § 48.424(4), Wisconsin Stat. § 48.415(4) provides: 4 or however, No. 03-2440 thru 03-2446.lbb states that if grounds for termination of parental rights are found by a court order or jury, the court shall find the parent unfit.28 of Thus, Wis. Stat. § 48.415(4) not only permits a finding unfitness upon showing the requires a finding of unfitness. elements in the statute, it This looks like a mandatory irrebuttable presumption to me.29 ¶88 The problem with this statutory scheme is that the grounds for denying visitation or placement are not based on the unfitness of the parent, but are instead based upon the best interests of the child. No finding or evidence of unfitness is required for these visitation decisions. This becomes important because there may be reasons the court did not modify the order Continuing denial of periods of physical placement or visitation, which shall be established by proving all of the following: (a) That the parent has been denied periods of physical placement by court order in an action affecting the family or has been denied visitation under an order under s. 48.345, 48.363, 48.365, 938.345, 938.363 or 938.365 containing the notice required by s. 48.356 (2) or 938.356 (2). (b) That at least one year has elapsed since the order denying periods of physical placement or visitation was issued and the court has not subsequently modified its order so as to permit periods of physical placement or visitation. 28 Wisconsin Stat. § 48.424(4) reads, "If grounds for the termination of parental rights are found by the court or jury, the court shall find the parent unfit. . . ." 29 Indeed, just last term, this court in Steven V. v. Kelley H., 2004 WI 47, ¶39, 271 Wis. 2d 1, 678 N.W.2d 856, concluded that a continuing denial of visitation can be "conclusively" determined "from certain existing court orders that satisfy the statutory requirements." 5 No. denying placement temporary and visitation, incarceration or 03-2440 thru 03-2446.lbb including involuntary serious absence illness, from the jurisdiction, or a judge's illness or death, that have little or nothing to do with the unfitness of a parent. Kelley H., 2004 WI 47, ¶56, ¶¶96-97, See Steven V. v. 271 Wis. 2d 1, 678 N.W.2d 856 (Abrahamson, J. concurring) and (Prosser, J. dissenting). ¶89 Wisconsin Stat. § 48.13 provides the grounds that need to be established to show that a child is in need of protection or services. Again, the court views these grounds with the focus on the best interest of the child. unfitness is irrelevant. Assessing parental Wisconsin Stat. § 48.13(8) and (9)30 may involve issues of a parent's unfitness, but on the other hand they may not.31 parent 30 may ultimately The long and the short of it is that a be found to be unfit even though the Wisconsin Stat. § 48.13 states as relevant here: The court has exclusive original jurisdiction over a child alleged to be in need of protection or services which can be ordered by the court, and: (8) Who is receiving inadequate care during the period of time a parent is missing, incarcerated, hospitalized or institutionalized; (9) Who is at least age 12, signs the petition requesting jurisdiction under this subsection and is in need of special treatment or care which the parent, guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide. 31 In State v. Gregory L.S., 2002 WI App 101, ¶3, 253 Wis. 2d 563, 643 N.W.2d 890, the court of appeals held that "[w]here there is clear and convincing evidence to support a CHIPS petition, a court can properly enter a CHIPS order. Although one parent may be fit, there are times when the facts support a CHIPS order that can protect the best interests of the child." 6 No. 03-2440 thru 03-2446.lbb parent's reasons for losing visitation and/or placement of one's child has nothing to do with whether that parent is unfit. All that need be shown is that a parent lost placement or visitation and failed to meet the conditions necessary for reinstating that placement or visitation. ¶90 Stanley, however, requires an individualized proof of a parent's unfitness "in a particular case." at 652. Stanley, 405 U.S. The Court was concerned with the statutory scheme that was based upon a presumption that an unwed parent was an unfit parent. The Court noted that procedure by presumption is always cheaper and easier than an individualized determination. 656-57. issues present But of when the competence realities procedure and in care, deference forecloses when to it the determinative explicitly past Id. at disdains formalities, it needlessly risks running roughshod over the important interests of both parent and child. Id. at 657. The Court indicated that while the establishment of prompt efficacious procedures will achieve legitimate state ends as a proper state interest worthy of cognizance in recognized higher constitutional values than adjudication, speed and the Court efficiency. As Court stated: Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. Id. at 656. 7 also the No. ¶91 03-2440 thru 03-2446.lbb What is particularly troubling in this case is that P.P. was scheduled to have his hearing on unfitness based on grounds of abandonment, continuing need of protection or need of services, and failure to assume parental responsibility. County filed those petitions on August 12, 2002. Dane After nearly five months of adjournments, on January 27, 2003, the County moved to continue the trial in Wis. Stat. § 48.415(4), noting that defense" to this ground. order to there take was advantage "no of affirmative The County was allowed to circumvent any hearing on the merits of unfitness that were alleged in the August 12, 2002, petitions. As the County conceded, it was much easier and much more convenient, indeed much more efficient, for the County to proceed in this fashion. The County had its ground without having to proceed with any evidence of unfitness that was alleged in the original petition. It no longer had to show abandonment, no longer had to show a failure to assume parental responsibility, and no longer had to show continuing need of protection or services. This is the very approach that the Court in Stanley held unconstitutional.32 ¶92 The ramifications of the majority opinion in this case cannot be understated. A child may be taken away from a parent, 32 Even more troubling is that one of the conditions set forth in the October 31, 2002, order which revised and extended a prior dispositional order, required that each parent not be incarcerated. Will this now become an independent ground to terminate the rights of parents convicted of felonies with sentences in excess of a year? While the majority is correct that a trial court can modify an order that each parent not be incarcerated for persons convicted of felonies and sentenced to an excess of one year, majority op., ¶31 n.11, there is no requirement for a trial court to grant such a modification. 8 No. 03-2440 thru 03-2446.lbb in the best interests of the child and for reasons that have nothing to do with the unfitness of that parent. Conditions for return of the child can be ordered by the court, which simply cannot be met for reasons unfitness of the parent. having nothing to do with the At the expiration of one year, a parent may have his or her parental rights terminated absent any particularized showing of unfitness, simply because he or she cannot satisfy the conditions set by the trial court.33 By simply waiting, the County no longer has to establish on a caseby-case basis that each parent who is in jeopardy of having his or her parental rights terminated is unfit. The County only needs to allow the statutory time period to run, and then rush 33 The majority suggests that Wis. Stat. § 48.415(4) is not facially invalid because there is still an as-applied substantive due process challenge to the statutory scheme so that reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. Majority op., ¶25. The majority indicates that had P.P. chosen to raise a defense to the ground at issue here, he may have put himself in a position to raise an as-applied challenge in this case. Majority op., ¶25 n.6. Besides shifting the burden to P.P. to show that he is a fit parent, the majority also fails to acknowledge that there is no such defense to the ground at issue in this case. One year had elapsed from the order denying physical placement and visitation and he had not satisfied the conditions. Notwithstanding the fact that a large part of the delay was caused by the County, P.P. simply had no defense to the ground that he had failed to ameliorate the conditions set forth within the time period required, as no such defense can possibly exist once the year has run. Saying that one can raise a defense when no such defense can possibly exist is an exercise in futility. Moreover, it is unreasonable to suggest that his acknowledgement that no such defense can exist should be construed as waiver in light of his initial request for a jury trial and his immediate appeal of the trial court's order terminating his parental rights. 9 No. in with Stanley Stanley an amended requires petition requires more than an to 03-2440 thru 03-2446.lbb terminate efficiency individualized for parental rights. efficiency's determination sake. of the These are unfitness of the parent. III ¶93 Access and an opportunity to be heard: fundamental principles upon which our judicial system is based. Few rights can be deemed as fundamental as the right to raise one s children. P.P. has not had access to the courts concerning his fundamental right to parent his children. He has not had an individualized determination of his unfitness as a parent. When his children are removed from him, he is entitled to at least that much. If he is unfit, his parental rights will appropriately be terminated. He has not been afforded the proper determination. Accordingly, I respectfully dissent. ¶94 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 10 No. 1 03-2440 thru 03-2446.lbb

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