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COURT OF APPEALS DECISION DATED AND FILED November 16, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL from an order of the circuit court for Racine County: richard j. kreul, Judge. Affirmed.
¶1 REILLY, J.[1] Bobby G.H. appeals from an order of the circuit court terminating his parental rights (TPR). Bobby seeks to vacate the TPR order on the grounds that Wis. Stat. § 48.415(6) is unconstitutionally vague and that the circuit court violated Wis. Stat. § 48.422(3) by not hearing testimony during the first part of the TPR proceedings. We reject both arguments and affirm the circuit court’s order.
BACKGROUND
¶2 Bobby G.H. and Roseannah M.H. are the parents of Talia, born
on February 6, 2007. On April 4, 2007,
Talia was found to be a child in need of protection or services (CHIPS) and the
circuit court entered an order placing Talia in foster care for ten months with
conditions for her return. The CHIPS
petition alleged that Bobby had abused Roseannah, and that both of them had
abused Roseannah’s three year-old daughter from another man. On February 15, 2008, the circuit court
extended the order for another year, finding that Talia was still in need of
protection or services. The order was
extended once again the following February.
On March 4, 2010, the Racine County Human Services Department filed a TPR
petition against Bobby and Roseannah for failing to assume parental
responsibility and because Talia was in continuing need of protection or
services.
¶3 TPR proceedings are a two-step process. Tammy W-G. v. Jacob T., 2011 WI 30,
¶18, 333 Wis. 2d 273, 797 N.W.2d 854. After
the reasons for termination are pled, a fact finder first determines whether
grounds exist to terminate parental rights.
Id. If the fact finder
determines that the facts alleged in the petition have not been proven, the
petition is dismissed. Id.
If however, a court or jury finds that
the grounds for termination were met, the court shall find the parent unfit. Id.
Only if this first step is met do the proceedings move to the second
stage. Id., ¶19. The second step—known as the “dispositional hearing”—is
where the court determines whether termination of parental rights is in the
child’s best interest. Id.
¶4 Bobby conceded at the first stage that grounds existed to
terminate his parental rights as he had failed to assume parental
responsibility in violation of Wis. Stat.
§ 48.415(6).[2] Bobby stated that he wanted to contest the
second phase of the TPR proceedings. In
accepting Bobby’s admission that grounds existed to terminate his parental
rights, the circuit court read all of § 48.415(6) to him. The court then asked Bobby if anyone forced
him to admit that grounds existed to terminate his parental rights or if he was
promised anything in return for his decision.
Bobby answered “no” to both questions.
When Bobby was examined by his attorney, he conceded that the State
could meet its burden of proof that grounds existed to terminate his parental
rights. The court accepted Bobby’s admission,
stating that it was satisfied that he reached his decision after considering
the nature of the proceedings and that his stipulation was given freely,
intelligently, and knowingly. At the
subsequent disposition hearing, Bobby’s parental rights were terminated.
¶5 Bobby filed a postdisposition motion for relief, seeking to
vacate the order terminating his parental rights on two grounds. First he argued that, in light of the Wisconsin
Supreme Court’s Tammy W-G. decision, Wis.
Stat. § 48.415(6) is unconstitutionally vague. He also argued that, as the circuit court
failed to hear testimony during the first stage of the TPR proceedings, he
should be permitted to withdraw his admission that he failed to assume parental
responsibility. The circuit court denied
the motion. Bobby now appeals.
STANDARD OF REVIEW
¶6 Bobby challenges both the constitutionality of Wis. Stat. § 48.415(6)(b) and that the circuit court violated Wis. Stat. § 48.422(3) by not hearing testimony to establish a basis for his admission that he had failed to assume parental responsibility. These are questions of law that we review de novo. See Tammy W-G., 333 Wis. 2d 273, ¶16; Xerox Corp. v. DOR, 2009 WI App 113, ¶12, 321 Wis. 2d 181, 772 N.W.2d 677.
DISCUSSION
¶7 Bobby argues that the Wisconsin Supreme Court’s recent decision in Tammy W-G. provides a new interpretation of Wis. Stat. § 48.415(6)(b), which makes it unconstitutional. Bobby does not, however, flesh out this argument, aside from saying that the standard created in Tammy W-G. “makes no sense.” As we presume that statutes are constitutional, and as Bobby has not met his high burden of demonstrating how or why § 48.415(6)(b) is unconstitutional, we shall review it no further. See Dane Cnty. DHS v. P.P., 2005 WI 32, ¶¶16, 18, 279 Wis. 2d 169, 694 N.W.2d 344.
¶8 Bobby’s second argument is that the circuit court violated Wis. Stat. § 48.422(3) by not
hearing testimony before it accepted his admission that he had failed to assume
parental responsibility. Bobby confuses
the concept of pleading no contest to the facts in a TPR petition with
admitting them. “Deciding not to contest
the allegations of the [TPR] petition is not equivalent to admitting the
allegations in a petition.” Waukesha
Cnty. v. Steven H., 2000 WI 28, ¶52, 233 Wis. 2d 344, 607 N.W.2d
607. Section 48.422(3) states “[i]f
the [TPR] petition is not contested the court shall hear testimony in support
of the allegations in the petition, including testimony as required in sub.
(7).” Bobby did not, however, plead no
contest; he admitted to the allegations in the TPR petition. Therefore, the applicable statute is §
48.422(7), which provides that “[b]efore accepting an admission of the alleged
facts in a [TPR] petition, the court shall ….”
See Steven H., 233 Wis. 2d 344, ¶52. As the circuit court satisfied the standards
of
§ 48.422(7), the court did not err in accepting Bobby’s admission that he
failed to assume parental responsibilities.
CONCLUSION
¶9 The order terminating Bobby’s parental rights is affirmed.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.